EN BANC Thereafter, before the February 12, 2001 deadline prescribed
[G.R. No. 147589.  June 26, 2001] under Comelec Resolution No. 3426 dated December 22, 2000, the
ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW),
represented herein by its secretary-general, MOHAMMAD
OMAR FAJARDO, petitioner, vs.  COMMISSION ON
ELECTIONS; CITIZENS DRUG WATCH; MAMAMAYAN AYAW
SA DROGA; GO! GO! PHILIPPINES; THE TRUE MARCOS
LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE
LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE,
ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL
ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH
ADVANCEMENT FOUNDATION, INC.; ANG LAKAS NG
OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI
ORGANIZATION and others under “Organizations/Coalitions”
of Omnibus Resolution No. 3785; PARTIDO NG MASANG
PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE’S
COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON
DEMOKRATIKO; PDP-LABAN; LIBERAL PARTY; NACIONALISTA
PARTY; ANG BUHAY HAYAANG YUMABONG; and others
under “Political Parties” of Omnibus Resolution No.
3785. respondents.
[G.R. No. 147613.  June 26, 2001]
BAYAN MUNA, petitioner, vs.  COMMISSION ON ELECTIONS;
NATIONALIST PEOPLE’S COALITION (NPC); LABAN NG
DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG
PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY;
MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL
FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG
BAYANI ORGANIZATION, respondents.
DECISION
PANGANIBAN, J.:
The party-list system is a social justice tool designed not only to
give more law to the great masses of our people who have less in life,
but also to enable them to become veritable lawmakers themselves,
empowered to participate directly in the enactment of laws designed to
benefit them.  It intends to make the marginalized and the
underrepresented not merely passive recipients of the State’s
benevolence, but active participants in the mainstream of
representative democracy.  Thus, allowing all individuals and groups,
including those which now dominate district elections, to have the same
opportunity to participate in party-list elections would desecrate this
lofty objective and mongrelize the social justice mechanism into an
atrocious veneer for traditional politics.
The Case
Before us are two Petitions under Rule 65 of the Rules of Court,
challenging Omnibus Resolution No. 3785 [1] issued by the Commission on
Elections (Comelec) on March 26, 2001.  This Resolution approved the
participation of 154 organizations and parties, including those herein
impleaded, in the 2001 party-list elections.  Petitioners seek the
disqualification of private respondents, arguing mainly that the party-list
system was intended to benefit the marginalized and underrepresented;
not the mainstream political parties, the non-marginalized or
overrepresented.
The Factual Antecedents
With the onset of the 2001 elections, the Comelec received
several Petitions for registration filed by sectoral parties, organizations
and political parties. According to the Comelec, “[v]erifications were
made as to the status and capacity of these parties and organizations
and hearings were scheduled day and night until the last party w[as]
heard.  With the number of these petitions and the observance of the
legal and procedural requirements, review of these petitions as well as
deliberations takes a longer process in order to arrive at a decision and
as a result the two (2) divisions promulgated a separate Omnibus
Resolution and individual resolution on political parties.  These
numerous petitions and processes observed in the disposition of these
petition[s] hinder the early release of the Omnibus Resolutions of the
Divisions which were promulgated only on 10 February 2001.” [2]
registered parties and organizations filed their respective
Manifestations, stating their intention to participate in the party-list
elections.  Other sectoral and political parties and organizations whose
registrations were denied also filed Motions for Reconsideration,
together with Manifestations of their intent to participate in the party-
list elections.  Still other registered parties filed their Manifestations
beyond the deadline.
The Comelec gave due course or approved the Manifestations (or
accreditations) of 154 parties and organizations, but denied those of
several others in its assailed March 26, 2001 Omnibus Resolution No.
3785, which we quote:
“We carefully deliberated the foregoing matters, having in mind that this
system of proportional representation scheme will encourage multi-
partisan [sic] and enhance the inability of small, new or sectoral parties
or organization to directly participate in this electoral window.
“It will be noted that as defined, the ‘party-list system’ is a ‘mechanism
of proportional representation’ in the election of representatives to the
House of Representatives from national, regional, and sectoral parties or
organizations or coalitions thereof registered with the Commission on
Elections.
“However, in the course of our review of the matters at bar, we must
recognize the fact that there is a need to keep the number of sectoral
parties, organizations and coalitions, down to a manageable level,
keeping only those who substantially comply with the rules and
regulations and more importantly the sufficiency of the Manifestations
or evidence on the Motions for Reconsiderations or Oppositions.” [3]
On April 10, 2001, Akbayan Citizens Action Party filed before the
Comelec a Petition praying that “the names of [some of herein
respondents] be deleted from the ‘Certified List of Political
Parties/Sectoral Parties/Organizations/Coalitions Participating in the
Party List System for the May 14, 2001 Elections’ and that said certified
list be accordingly amended.” It also asked, as an alternative, that the
votes cast for the said respondents not be counted or canvassed, and
that the latter’s nominees not be proclaimed. [4] On April 11, 2001, Bayan
Muna and Bayan Muna-Youth also filed a Petition for Cancellation of
Registration and Nomination against some of herein respondents. [5]
On April 18, 2001, the Comelec required the respondents in the
two disqualification cases to file Comments within three days from
notice.  It also set the date for hearing on April 26, 2001, [6] but
subsequently reset it to May 3, 2001. [7] During the hearing, however,
Commissioner Ralph C. Lantion merely directed the parties to submit
their respective memoranda.[8]
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong
Bayani-OFW Labor Party filed a Petition [9] before this Court on April 16,
2001.  This Petition, docketed as GR No. 147589, assailed Comelec
Omnibus Resolution No. 3785.  In its Resolution dated April 17, 2001,
[10]
 the Court directed respondents to comment on the Petition within a
non-extendible period of five days from notice. [11]
On April 17, 2001, Petitioner Bayan Muna also filed before this
Court a Petition,[12] docketed as GR No. 147613, also challenging
Comelec Omnibus Resolution No. 3785.  In its Resolution dated May 9,
2001,[13] the Court ordered the consolidation of the two Petitions before
it; directed respondents named in the second Petition to file their
respective Comments on or before noon of May 15, 2001; and called the
parties to an Oral Argument on May 17, 2001.  It added that the
Comelec may proceed with the counting and canvassing of votes cast for
the party-list elections, but barred the proclamation of any winner
therein, until further orders of the Court.
Thereafter, Comments[14] on the second Petition were received by
the Court and, on May 17, 2001, the Oral Argument was conducted as
scheduled.  In an Order given in open court, the parties were directed to
submit their respective Memoranda simultaneously within a non-
extendible period of five days.[15]
Issues:
1
 During the hearing on May 17, 2001, the Court directed the
parties to address the following issues:
“1.  Whether or not recourse under Rule 65 is proper under the
premises.  More specifically, is there no other plain, speedy or adequate
remedy in the ordinary course of law?
“2. Whether or not political parties may participate in the party-list
elections.
“3. Whether or not the party-list system is exclusive to ‘marginalized and
underrepresented’ sectors and organizations.
“4. Whether or not the Comelec committed grave abuse of discretion in
promulgating Omnibus Resolution No. 3785.” [16]
The Court’s Ruling
The Petitions are partly meritorious.  These cases should be
remanded to the Comelec which will determine, after summary
evidentiary hearings, whether the 154 parties and organizations
enumerated in the assailed Omnibus Resolution satisfy the requirements
of the Constitution and RA 7941, as specified in this Decision.
First Issue:
Recourse Under Rule 65
Respondents contend that the recourse of both petitioners under
Rule 65 is improper because there are other plain, speedy and adequate
remedies in the ordinary course of law. [17] The Office of the Solicitor
General argues that petitioners should have filed before the Comelec a
petition either for disqualification or for cancellation of registration,
pursuant to Sections 19, 20, 21 and 22 of Comelec Resolution No. 3307-
A[18]dated November 9, 2000.[19]
We disagree.  At bottom, petitioners attack the validity of Comelec
Omnibus Resolution 3785 for having been issued with grave abuse of
discretion, insofar as it allowed respondents to participate in the party-
list elections of 2001.  Indeed, under both the Constitution [20] and the
Rules of Court, such challenge may be brought before this Court in a
verified petition for certiorari under Rule 65.
Moreover, the assailed Omnibus Resolution was promulgated by
Respondent Commission en banc; hence,  no motion for reconsideration
was possible, it being a prohibited pleading under Section 1 (d), Rule 13
of the Comelec Rules of Procedure.[21]
The Court also notes that Petitioner  Bayan Muna had filed before
the Comelec a Petition for Cancellation of Registration and Nomination
against some of herein respondents. [22] The Comelec, however, did not
act on that Petition.  In view of the pendency of the elections, Petitioner
Bayan Muna sought succor from this Court, for there was no other
adequate recourse at the time.  Subsequent events have proven the
urgency of petitioner’s action; to this date, the Comelec has not yet
formally resolved the Petition before it.  But a resolution may just be a
formality because the Comelec, through the Office of the Solicitor
General, has made its position on the matter quite clear.
In any event, this case presents an exception to the rule
that certiorari shall lie only in the absence of any other plain, speedy and
adequate remedy.[23] It has been held that certiorari is available,
notwithstanding the presence of other remedies, “where the issue
raised is one purely of law, where public interest is involved, and in case
of urgency.”[24] Indeed, the instant case is indubitably imbued with public
interest and with extreme urgency, for it potentially involves the
composition of 20 percent of the House of Representatives.
Moreover, this case raises transcendental constitutional issues on
the party-list system, which this Court must urgently resolve, consistent
with its duty to “formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules.” [25]
Finally, procedural requirements “may be glossed over to prevent
a miscarriage of justice, when the issue involves the principle of social
justice x x x when the decision sought to be set aside is a nullity, or when
the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.” [26]
Second Issue:
Participation of Political Parties
In its Petition, Ang Bagong Bayani-OFW Labor Party contends that
“the inclusion of political parties in the party-list system is the most
objectionable portion of the questioned Resolution.” [27] For its part,
Petitioner Bayan Muna objects to the participation of “major political
parties.”[28] On the other hand, the Office of the Solicitor General, like
the impleaded political parties, submits that the Constitution and RA No.
7941 allow political parties to participate in the party-list elections.  It
argues that the party-list system is, in fact, open to all “registered
national, regional and sectoral parties or organizations.” [29]
We now rule on this issue.  Under the Constitution and RA 7941,
private respondents cannot be disqualified from the party-list elections,
merely on the ground that they are political parties.  Section 5, Article VI
of the Constitution provides that members of the House of
Representatives may “be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.”
Furthermore, under Sections 7 and 8, Article IX (C) of the
Constitution, political parties may be registered under the party-list
system.
“Sec. 7.  No votes cast in favor of a political party, organization, or
coalition shall be valid, except for those registered under the party-list
system as provided in this Constitution.
“Sec. 8.  Political parties, or organizations or coalitions registered under
the party-list system, shall not be represented in the voters' registration
boards, boards of election inspectors, boards of canvassers, or other
similar bodies. However, they shall be entitled to appoint poll watchers
in accordance with law.”[30]
During the deliberations in the Constitutional Commission, Comm.
Christian S. Monsod pointed out that the participants in the party-list
system may “be a regional party, a sectoral party, a national party,
UNIDO,[31] Magsasaka, or a regional party in Mindanao." [32] This was also
clear from the following exchange between Comms. Jaime Tadeo and
Blas Ople:[33]
“MR. TADEO.   Naniniwala ba kayo na ang party list ay pwedeng
paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at
Nacionalista?
MR. OPLE.  Maaari yan sapagkat bukas ang party list system sa lahat
ng mga partido.”
Indeed, Commissioner Monsod stated that the purpose of the
party-list provision was to open up the system, in order to give a chance
to parties that consistently place third or fourth in congressional district
elections to win a seat in Congress. [34] He explained: “The purpose of this
is to open the system.  In the past elections, we found out that there
were certain groups or parties that, if we count their votes nationwide,
have about 1,000,000 or 1,500,000 votes.  But they were always third or
fourth place in each of the districts.  So, they have no voice in the
Assembly.  But this way, they would have five or six representatives in
the Assembly even if they would not win individually in legislative
districts.  So, that is essentially the mechanics, the purpose and
objectives of the party-list system.”
For its part, Section 2 of RA 7941 also provides for “a party-list
system of registered national, regional and sectoral parties or
organizations or coalitions thereof, x x x.” Section 3 expressly states that
a  “party” is  “either a political party or a sectoral party or a coalition of
parties.” More to the point, the law defines “political party” as “an
organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government and
which, as the most immediate means of securing their adoption,
regularly nominates and supports certain of its leaders and members as
candidates for public office.”
Furthermore, Section 11 of RA 7941 leaves no doubt as to the
participation of  political parties in the party-list system.  We quote the
pertinent provision below:
“x x x                                       x x x                                  x x x
“For purposes of the May 1998 elections, the first five (5) major political
parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
“x x x                                       x x x                                  x x x”
2
 Indubitably, therefore,  political parties – even the major ones
--  may participate in the party-list elections.
Third Issue:
Marginalized and Underrepresented
That political parties may participate in the party-list elections
does not mean, however, that any political party -- or any organization
or group for that matter -- may do so.  The requisite character of these
parties or organizations must be consistent with the purpose of the
party-list system, as laid down in the Constitution and RA 7941.  Section
5, Article VI of the Constitution, provides as follows:
“(1) The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who
shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and
sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the party
list.  For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women,
youth, and such other sectors as may be provided by law, except the
religious sector.” (Emphasis supplied.)
Notwithstanding the sparse language of the provision, a
distinguished member of the Constitutional Commission declared that
the purpose of the party-list provision was to give “genuine power to
our people” in Congress.  Hence, when the provision was discussed, he
exultantly announced:  “On this first day of August 1986, we shall,
hopefully, usher in a new chapter to our national history, by giving
genuine power to our people in the legislature.” [35]
The foregoing provision on the party-list system is not self-
executory.  It is, in fact, interspersed with phrases like “in accordance
with law” or “as may be provided by law”; it was thus up to Congress to
sculpt in granite the lofty objective of the Constitution.  Hence, RA 7941
was enacted.  It laid out the statutory policy in this wise:
“SEC. 2.  Declaration of Policy. --  The State shall promote proportional
representation in the election of representatives to the House of
Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit
the nation as a whole, to become members of the House of
Representatives.  Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group interests in
the House of Representatives by enhancing their chances to compete for
and win seats in the legislature, and shall provide the simplest scheme
possible.”
The Marginalized and
Underrepresented to Become
Lawmakers Themselves
The foregoing provision mandates a state policy of promoting
proportional representation by means of the Filipino-style party-list
system, which will “enable” the election to the House of Representatives
of Filipino citizens,
1.  who belong to marginalized and underrepresented
sectors, organizations and parties; and
2.  who lack well-defined constituencies; but
3.  who could contribute to the formulation and enactment
of appropriate legislation that will benefit the nation as
a whole.
The key words in this policy are “proportional representation,”
“marginalized and underrepresented,” and “lack [of] well-defined
constituencies.”
“Proportional representation” here does not refer to the number
of people in a particular district, because the party-list election is
national in scope.  Neither does it allude to numerical strength in a
distressed or oppressed group.  Rather, it refers to the representation of
the “marginalized and underrepresented” as exemplified by the
enumeration in Section 5 of the law; namely, “labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals.”
However, it is not enough for the candidate to claim
representation of the marginalized and underrepresented, because
representation is easy to claim and to feign.  The party-list organization
or party must factually and truly represent the marginalized and
underrepresented constituencies mentioned in Section 5.
[36]
Concurrently, the persons nominated by the party-list candidate-
organization must be “Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties.”
Finally, “lack of well-defined constituenc[y]” refers to the absence
of a traditionally identifiable electoral group, like voters of a
congressional district or territorial unit of government.  Rather, it points
again to those with disparate interests identified with the “marginalized
or underrepresented.”
In the end, the role of the Comelec is to see to it that only those
Filipinos who are “marginalized and underrepresented” become
members of Congress under the party-list system, Filipino-style.
The intent of the Constitution is clear:  to give genuine power to
the people, not only by giving more law to those who have less in life,
but more so by enabling them to become veritable lawmakers
themselves.  Consistent with this intent, the policy of the implementing
law, we repeat, is likewise clear: “to enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties, x
x x, to become members of the House of Representatives.” Where the
language of the law is clear, it must be applied according to its express
terms.[37]
The marginalized and underrepresented sectors to be represented
under the party-list system are enumerated in Section 5 of RA 7941,
which states:
“SEC. 5.  Registration.  --  Any organized group of persons may register
as a party, organization or coalition for purposes of the party-list system
by filing with the COMELEC not later than ninety (90) days before the
election a petition verified by its president or secretary stating its desire
to participate in the party-list system as a national, regional or sectoral
party or organization or a coalition of such parties or organizations,
attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant
information as the COMELEC may require:  Provided, that the sector
shall include labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals.”
While the enumeration of marginalized and underrepresented
sectors is not exclusive, it demonstrates the clear intent of the law that
not all sectors can be represented under the party-list system.  It is a
fundamental principle of statutory construction that words employed in
a statute are interpreted in connection with, and their meaning is
ascertained by reference to, the words and the phrases with which they
are associated or related.  Thus, the meaning of a term in a statute may
be limited, qualified or specialized by those in immediate association. [38]
The Party-
List System
Desecrate
d by
the    OSG
Contention
s
3
 Notwithstanding the unmistakable statutory policy, the Office of
the Solicitor General submits that RA No. 7941 “does not limit the
participation in the party-list system to the marginalized and
underrepresented sectors of society.” [39] In fact, it contends that any
party or group that is not disqualified under Section 6 [40]of RA 7941 may
participate in the elections.  Hence, it admitted during the Oral
Argument that even an organization representing the super rich of
Forbes Park or Dasmariñas Village could participate in the party-list
elections.[41]
The declared policy of RA 7941 contravenes the position of the
Office of the Solicitor General (OSG).  We stress that the party-list
system seeks to enable certain Filipino citizens – specifically those
belonging to marginalized and underrepresented sectors, organizations
and parties – to be elected to the House of Representatives.  The
assertion of the OSG that the party-list system is not exclusive to the
marginalized and underrepresented disregards the clear statutory
policy. Its claim that even the super-rich and overrepresented can
participate desecrates the spirit of the party-list system.
Indeed, the law crafted to address the peculiar disadvantages of
Payatas hovel dwellers cannot be appropriated by the mansion owners
of Forbes Park.  The interests of these two sectors are manifestly
disparate; hence, the OSG’s position to treat them similarly defies
reason and common sense.  In contrast, and with admirable candor,
Atty. Lorna Patajo-Kapunan[42] admitted during the Oral Argument that a
The import of the open party-list system may be more vividly
understood when compared to a student dormitory “open house,”
which by its nature allowsoutsiders to enter the facilities. Obviously, the
“open house” is for the benefit of outsiders only, not the dormers
themselves who can enter the dormitory even without such special
privilege.  In the same vein, the open party-list system is only for the
“outsiders” who cannot get elected through regular elections otherwise;
it is not for the non-marginalized or overrepresented who already fill the
ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie
for the remaining seats under the party-list system would not
only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law
to enhance it.  The party-list system is a tool for the benefit of the
underprivileged; the law could not have given the same tool to others,
to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be
sullied and prostituted by those who are neither marginalized nor
underrepresented.  It cannot let that flicker of hope be snuffed out.  The
clear state policy must permeate every discussion of the qualification of
political parties and other organizations under the party-list system.
R
e
f

u
group of bankers, industrialists and sugar planters could not join the
party-list system as representatives of their respective sectors. [43] t

a
While the business moguls and the mega-rich are, numerically
t
speaking, a tiny minority, they are neither marginalized nor
i
underrepresented, for the stark reality is that their economic clout
o
engenders political power more awesome than their numerical
n
limitation.  Traditionally, political power does not necessarily emanate
from the size of one’s constituency; indeed, it is likely to arise more
directly from the number and amount of one’s bank accounts. o

It is ironic, therefore, that the marginalized and underrepresented f

in our midst are the majority who wallow in poverty, destitution and
infirmity.  It was for them that the party-list system was enacted -- to t
give them not only genuine hope, but genuine power; to give them the h
opportunity to be elected and to represent the specific concerns of their e
constituencies; and simply to give them a direct voice in Congress and in
the larger affairs of the State.  In its noblest sense, the party-list system
S
truly empowers the masses and ushers a new hope for genuine
e
change.  Verily, it invites those marginalized and underrepresented in
p
the past – the farm hands, the fisher folk, the urban poor, even those in
a
the underground movement – to come out and participate, as indeed
r
many of them came out and participated during the last elections.  The
a
State cannot now disappoint and frustrate them by disabling and
t
desecrating this social justice vehicle.
e
Because the marginalized and underrepresented had not been
able to win in the congressional district elections normally dominated by
traditional politicians and vested groups, 20 percent of the seats in the O

House of Representatives were set aside for the party-list system.  In p

arguing that even those sectors who normally controlled 80 percent of i

the seats in the House could participate in the party-list elections for the n

remaining 20 percent, the OSG and the Comelec disregard the i

fundamental difference between the congressional district elections and o

the party-list elections. n

As earlier noted, the purpose of the party-list provision was to s

open up the system, [44] in order to enhance the chance of sectoral
groups and organizations to gain representation in the House of
Representatives through the simplest scheme possible. [45] Logic shows
that the system has been opened to those who have never gotten a
foothold within it -- those who cannot otherwise win in regular elections
and who therefore need the “simplest scheme possible” to do
so.  Conversely, it would be illogical to open the system to those who
have long been within it -- those privileged sectors that have long
dominated the congressional district elections.
The Separate Opinions of our distinguished colleagues, Justices
Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the
supposed intent of the framers of the Constitution as culled from their
deliberations.
The fundamental principle in constitutional construction,
however, is that the primary source from which to ascertain
constitutional intent or purpose is the language of the provision
itself.  The presumption is that the words in which the constitutional
provisions are couched express the objective sought to be attained. [46]In
other words, verba legis still prevails.  Only when the meaning of the
4
words used is unclear and equivocal should resort be made to would be entitled to watchers under Section 26 of Republic Act No.
extraneous aids of construction and interpretation, such as the 7166.
proceedings of the Constitutional Commission or Convention, in order to What is needed under the present circumstances, however, is a
shed light on and ascertain the true intent or purpose of the provision factual determination of whether respondents herein and, for that
being construed.[47] matter, all the 154 previously approved groups, have the necessary
Indeed, as cited in the Separate Opinion of Justice Mendoza, this qualifications to participate in the party-list elections, pursuant to the
Court stated in Civil Liberties Union v. Executive Secretary [48]  that “the Constitution and the law.
debates and proceedings of the constitutional convention [may be Bayan Muna also urges us to immediately rule out Respondent
consulted] in order to arrive at the reason and purpose of the resulting Mamamayan Ayaw sa Droga (MAD), because “it is a government entity
Constitution x x x only when other guides fail as said proceedings are using government resources and privileges.” This Court, however, is not
powerless to vary the terms of the Constitution when the meaning is a trier of facts.[51] It is not equipped to receive evidence and determine
clear.  Debates in the constitutional convention ‘are of value as showing the truth of such factual allegations.
the views of the individual members, and as indicating the reason for Basic rudiments of due process require that respondents should
their votes, but they give us no light as to the views of the large majority first be given an opportunity to show that they qualify under the
who did not talk, much less of the mass or our fellow citizens whose guidelines promulgated in this Decision, before they can be deprived of
votes at the polls gave that instrument the force of fundamental their right to participate in and be elected under the party-list system.
G
law.  We think it safer to construe the constitution from what appears
u
upon its face.’ The proper interpretation therefore depends more on
i
how it was understood by the people adopting it than in the framers’
d
understanding thereof.”
e
Section 5, Article VI of the Constitution, relative to the party-list
l
system, is couched in clear terms:  the mechanics of the system shall
i
be provided by law. Pursuant thereto, Congress enacted RA 7941.  In
n
understanding and implementing party-list representation, we should
e
therefore look at the law first.  Only when we find its provisions
s
ambiguous should the use of extraneous aids of construction be
resorted to.
But, as discussed earlier, the intent of the law is obvious and clear f

from its plain words.  Section 2 thereof unequivocally states that the o

party-list system of electing congressional representatives was designed r

to “enable underrepresented sectors, organizations and parties, and

who lack well-defined political constituencies but who could contribute S
to the formulation and enactment of appropriate legislation that will c
benefit the nation as a whole x x x.” The criteria for participation is well r
defined.  Thus, there is no need for recourse to constitutional e
deliberations, not even to the proceedings of Congress.  In any event, e
the framers’ deliberations merely express their individual opinions and n
are, at best, only persuasive in construing the meaning and purpose of i
the constitution or statute. n
Be it remembered that the constitutionality or validity of Sections g
2 and 5 of RA 7941 is not an issue here.  Hence, they remain parts of the
law, which must be applied plainly and simply.
Fourth Issue: P

Grave Abuse of Discretion a

r
From its assailed Omnibus Resolution, it is manifest that the
t
Comelec failed to appreciate fully the clear policy of the law and the
y
Constitution.  On the contrary, it seems to have ignored the facet of the
-
party-list system discussed above.  The OSG as its counsel admitted
L
before the Court that any group, even the non-marginalized and
i
overrepresented, could field candidates in the party-list elections.
s
When a lower court, or a quasi-judicial agency like the
t
Commission on Elections, violates or ignores the Constitution or the law,
its action can be struck down by this Court on the ground of grave abuse
of discretion.[49] Indeed, the function of all judicial and quasi-judicial P

instrumentalities is to apply the law as they find it, not to reinvent or a

second-guess it.[50] r

In its Memorandum, Petitioner Bayan Muna passionately pleads t

for the outright disqualification of the major political parties – i

Respondents Lakas-NUCD, LDP, NPC, LP and PMP – on the ground that c

under Comelec Resolution No. 4073, they have been accredited as the i

five (six, including PDP-Laban) major political parties in the May 14, 2001 p

elections.  It argues that because of this, they have the “advantage of a

getting official Comelec Election Returns, Certificates of Canvass, n

preferred poll watchers x x x.” We note, however, that this accreditation t

does not refer to the party-list election, but, inter alia, to the election of s

district representatives for the purpose of determining which parties The Court, therefore, deems it proper to remand the case to the
Comelec for the latter to determine, after summary evidentiary
5
hearings,  whether the 154 parties and organizations allowed to
participate in the party-list elections comply with the requirements of
the law.  In this light,  the Court finds it appropriate to lay down the
following guidelines, culled from the law and the Constitution, to assist
the Comelec in its work.
First, the political party, sector, organization or coalition must
represent the marginalized and underrepresented groups identified in
Section 5 of RA 7941.  In other words, it must show -- through its
constitution, articles of incorporation, bylaws, history, platform of
government and track record -- that it represents and seeks to uplift
marginalized and underrepresented sectors. Verily, majority of its
membership should belong to the marginalized and
underrepresented.  And it must demonstrate that in a conflict of
interests, it has chosen or is likely to choose the interest of such sectors.
Second, while even major political parties are expressly allowed by
RA 7941 and the Constitution to participate in the party-list system, they
must comply with the declared statutory policy of enabling “Filipino
citizens belonging to marginalized and underrepresented sectors x x x to
be elected to the House of Representatives.” In other words, while they
are not disqualified merely on the ground that they are political parties,
they must show, however, that they represent the interests of the
marginalized and underrepresented.  The counsel of Aksyon
Demokratiko and other similarly situated political parties admitted as
much during the Oral Argument, as the following quote shows:
“JUSTICE PANGANIBAN:  I am not disputing that in my question.  All I
am saying is, the political party must claim to represent the
marginalized and underrepresented sectors?
ATTY. KAPUNAN:  Yes, Your Honor, the answer is yes.” [52]
Third, in view of the objections[53] directed against the registration
of Ang Buhay Hayaang Yumabong, which is allegedly a religious group,
the Court notes the express constitutional provision that the religious
sector may not be represented in the party-list system.  The extent of
the constitutional proscription is demonstrated by the following
discussion during the deliberations of the Constitutional Commission:
“MR. OPLE.  x x x
In the event that a certain religious sect with
nationwide and even international networks of members and
supporters, in order to circumvent this prohibition, decides to
form its own political party in emulation of those parties I had
mentioned earlier as deriving their inspiration and
philosophies from well-established religious faiths, will that
also not fall within this prohibition?
MR. MONSOD.  If the evidence shows that the intention is to go
around the prohibition, then certainly the Comelec can pierce
through the legal fiction.”[54]
The following discussion is also pertinent:
“MR. VILLACORTA.  When the Commissioner proposed “EXCEPT
RELIGIOUS GROUPS,” he is not, of course, prohibiting priests,
imams or pastors who may be elected by, say, the indigenous
community sector to represent their group.
REV. RIGOS.  Not at all, but I am objecting to anybody who
represents the Iglesia ni Kristo, the Catholic Church, the
Protestant Church et cetera.”[55]
Furthermore, the Constitution provides that “religious
denominations and sects shall not be registered.” [56] The prohibition was
explained by a member[57] of the Constitutional Commission in this wise:
“[T]he prohibition is on any religious organization registering as a
political party.  I do not see any prohibition here against a priest running
as a candidate.  That is not prohibited here; it is the registration of a
religious sect as a political party.” [58]
Fourth, a party or an organization must not be disqualified under
Section 6 of RA 7941, which enumerates the grounds for disqualification
as follows:
“(1) It is a religious sect or denomination, organization or
association organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government,
foreign political party, foundation, organization,
whether directly or through any of its officers or
members or indirectly through third parties for partisan
election purposes;
(5) It violates or fails to comply with laws, rules or
regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding
elections or fails to obtain at least two per centum (2%)
of the votes cast under the party-list system in the two
(2) preceding elections for the constituency in which it
has registered.”[59]
Note should be taken of paragraph 5, which disqualifies a party or
group for violation of or failure to comply with election laws and
regulations.  These laws include Section 2 of RA 7941, which states that
the party-list system seeks to “enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties x
x x to become members of the House of Representatives.” A party or an
organization, therefore, that does not comply with this policy must be
disqualified.
Fifth, the party or organization must not be an adjunct of, or a
project organized or an entity funded or assisted by, the
government.  By the very nature of the party-list system, the party or
organization must be a group of citizens, organized by citizens and
operated by citizens.  It must be independent of the government. The
participation of the government or its officials in the affairs of a party-list
candidate is not only illegal [60] and unfair to other parties, but also
deleterious to the objective of the law:  to enable citizens belonging to
marginalized and underrepresented sectors and organizations to be
elected to the House of Representatives.
Sixth, the party must not only comply with the requirements of
the law; its nominees must likewise do so.  Section 9 of RA 7941 reads as
follows:
“SEC. 9.  Qualifications of Party-List Nominees.  – No person shall be
nominated as party-list representative unless he is a natural-born citizen
of the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately preceding the day of
the election, able to read and write, a bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five (25) years
of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five
(25) but not more than thirty (30) years of age on the day of the
election.  Any youth sectoral representative who attains the age of thirty
(30) during his term shall be allowed to continue in office until the
expiration of his term.”
Seventh, not only the candidate party or organization must
represent marginalized and underrepresented sectors; so also must its
nominees.  To repeat, under Section 2 of RA 7941, the nominees must
be Filipino citizens “who belong to marginalized and underrepresented
sectors, organizations and parties.” Surely, the interests of the youth
cannot be fully represented by a retiree; neither can those of the urban
poor or the working class, by an industrialist.  To allow otherwise is to
betray the State policy to give genuine representation to the
marginalized and underrepresented.
Eighth, as previously discussed, while lacking a well-defined
political constituency, the nominee must likewise be able to contribute
to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole.  Senator Jose Lina explained during the
bicameral committee proceedings that “the nominee of a party, national
or regional, is not going to represent a particular district x x x.” [61]
Epilogue
The linchpin of this case is the clear and plain policy of the
law:  “to enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well-
6
defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit
the nation as a whole, to become members of the House of
Representatives.”
Crucial to the resolution of this case is the fundamental social
justice principle that those who have less in life should have more in
law.  The party-list system is one such tool intended to benefit those
who have less in life.  It gives the great masses of our people genuine
hope and genuine power.  It is a message to the destitute and the
prejudiced, and even to those in the underground, that change is
possible.  It is an invitation for  them to come out of their limbo and
seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions of the
Comelec and the other respondents that the party-list system is, without
any qualification, open to all.  Such position does not only weaken the
electoral chances of the marginalized and underrepresented; it also
prejudices them.  It would gut the substance of the party-list
system.  Instead of generating hope, it would create a mirage.  Instead
of enabling the marginalized, it would further weaken them and
aggravate their marginalization.
In effect, the Comelec would have us believe that the party-list
provisions of the Constitution and RA 7941 are nothing more than a play
on dubious words, a mockery of noble intentions, and an empty offering
on the altar of people empowerment.  Surely, this could not have been
the intention of the framers of the Constitution and the makers of RA
7941.
WHEREFORE, this case is REMANDED to the Comelec, which is
hereby DIRECTED to immediately conduct summary evidentiary hearings
on the qualifications of the party-list participants in the light of the
guidelines enunciated in this Decision.  Considering the extreme urgency
of determining the winners in the last party-list elections, the Comelec is
directed to begin its hearings for the parties and organizations that
appear to have garnered such number of votes as to qualify for seats in
the House of Representatives.  The Comelec is further DIRECTED to
submit to this Court its compliance report within 30 days from notice
hereof.
The Resolution of this Court dated May 9, 2001, directing the
Comelec “to refrain from proclaiming any winner” during the last party-
list election, shall remain in force until after the Comelec itself will have
complied and reported its compliance with the foregoing disposition.
This Decision is immediately executory upon the Commission on
Elections’ receipt thereof.  No pronouncement as to costs.
SO ORDERED.

7
    
THE COMMISSION ON ELECTIONS,
EN BANC                                                Respondent.
 
BANTAY REPUBLIC ACT OR BA-RA 7941,        G.R. No.
represented by MR. AMEURFINO E. CINCO, 177271
Chairman, AND URBAN POOR FOR LEGAL  
REFORMS (UP-LR), represented by MRS. MYRNA        Present: X
P. PORCARE, Secretary-   ------------------------------------------------------------------------------------------------
General,                                                      Petitioner           PUNO, C.J., -- x
s,           QUISUMBING  
  ,  
                    - versus -                        YNARES-  
                                      SANTIAGO,  D E C I S I O N
COMMISSION ON ELECTIONS, BIYAHENG PINOY,           SANDOVAL-GUTIERREZ,  
KAPATIRAN NG MGA NAKAKULONG NA           CARPIO, GARCIA, J.:
*
WALANG SALA (KAKUSA), BARANGAY           AUSTRIA-  
ASSOCIATION FOR NATIONAL ADVANCEMENT MARTINEZ,           Before the Court are these two consolidated petitions
AND TRANSPARENCY (BANAT), AHON PINOY,          *CORONA, for certiorari and mandamus to nullify and set aside certain issuances of
AGRICULTURAL SECTOR ALLIANCE OF THE           CARPIO the Commission on Elections (Comelec) respecting party-list groups
PHILIPPINES, INC. (AGAP), PUWERSA NG MORALES, which have manifested their intention to participate in the party-
BAYANING ATLETA (PBA), ALYANSA NG MGA           AZCUNA, list elections on May 14, 2007.
GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA           TINGA,  
PARA SA MAMAMAYAN, INC. (AGHAM), BABAE           CHICO-           In the first petition, docketed as  G.R. No. 177271, petitioners
PARA SA KAUNLARAN (BABAE KA), AKSYON NAZARIO, Bantay Republic Act (BA-RA 7941, for short) and the Urban Poor for
SAMBAYANAN (AKSA), ALAY SA BAYAN NG           GARCIA, Legal Reforms  (UP-LR, for short) assail the various Comelec resolutions
MALAYANG PROPESYUNAL AT REPORMANG           VELASCO, JR., accrediting private respondents Biyaheng Pinoyet al., to participate in
KALAKAL (ABAY-PARAK), AGBIAG TIMPUYOG and the forthcoming party-list elections on May 14, 2007 without
ILOCANO, INC. (AGBIAG!), ABANTE ILONGGO,            NACHURA, JJ simultaneously determining whether or not their respective nominees
INC. (ABA ILONGGO), AANGAT TAYO (AT), . possess the requisite qualifications defined in Republic Act (R.A.) No.
AANGAT ANG KABUHAYAN (ANAK), BAGO   7941, or the “Party-List System Act” and belong to the marginalized and
NATIONAL CULTURAL SOCIETY OF THE   underrepresented sector each seeks to represent. In the second,
PHILIPPINES (BAGO), ANGAT ANTAS-        Promulgated: docketed as G.R. No. 177314, petitioners Loreta Ann P. Rosales,
KABUHAYAN PILIPINO MOVEMENT (AANGAT KA     Kilosbayan Foundation and Bantay Katarungan Foundation
PILIPINO), ARTS BUSINESS AND SCIENCE       May 4, 2007 impugn Comelec Resolution 07-0724dated April 3, 2007 effectively
PROFESSIONAL (ABS), ASSOSASYON NG MGA   denying their request for the release or disclosure of the names of the
MALILIIT NA NEGOSYANTENG GUMAGANAP INC. nominees of the fourteen (14) accredited participating party-list
(AMANG), SULONG BARANGAY MOVEMENT, groups mentioned in petitioner Rosales’ previous letter-request.
KASOSYO PRODUCERS CONSUMER EXCHANGE  
ASSOCIATION, INC. (KASOSYO), UNITED           While both petitions commonly seek to compel the Comelec to
MOVEMENT AGAINST DRUGS (UNI-MAD), disclose or publish the names of the nominees of the various party-list
PARENTS ENABLING PARENTS (PEP), ALLIANCE groups named in the petitions,[1] the petitioners in G.R. No.
OF NEO-CONSERVATIVES (ANC), FILIPINOS FOR 177271   have the following additional prayers: 1) that the 33private
PEACE, JUSTICE AND PROGRESS MOVEMENT respondents named therein be “declare[d] as unqualified to participate
(FPJPM), BIGKIS PINOY MOVEMENT (BIGKIS), 1- in the party-list elections as sectoral organizations,parties  or
UNITED TRANSPORT KOALISYON (1-UNTAK), coalition  for failure to comply with the guidelines prescribed  by the
ALLIANCE FOR BARANGAY CONCERNS (ABC), [Court] in  [Ang Bagong Bayani v. Comelec[2]]”
BIYAYANG BUKID, INC., ALLIANCE FOR and, 2) correspondingly, that the Comelec  be enjoined from
NATIONALISM AND DEMOCRACY (ANAD), allowing respondent groups from participating in the May 2007
AKBAY PINOY OFW-NATIONAL INC., (APOI), elections.
ALLIANCE TRANSPORT SECTOR (ATS), KALAHI  
SECTORAL PARTY (ADVOCATES FOR OVERSEAS             In separate resolutions both dated April 24, 2007, the Court en
FILIPINO) AND ASSOCIATION OF banc  required the public and private respondents to file their respective
ADMINISTRATORS, PROFESSIONALS AND comments on the petitions within a non-extendible period of five (5)
SENIORS (AAPS),       days from notice. Apart from respondent Comelec, seven (7) private
                                  Respondents. respondents[3] in G.R. No. 177271 and one party-list group [4] mentioned
x--------------------------------------------------x in G.R.  No.  177314 submitted their separate comments. In the main,
REP. LORETTA ANN P. ROSALES,   the separate comments of the  private respondents focused on the
KILOSBAYAN FOUNDATION, untenability and prematurity  of the plea of petitioners BA-RA 7941 and
BANTAY KATARUNGAN FOUNDATION, UP-LR to nullify their accreditation as party-list groups and thus
                                                 Petitioners, disqualify them and their respective nominees from participating in
  the May 14, 2007 party-list elections.
   
            The facts:
                     - versus -  
            On January 12, 2007, the Comelec issued Resolution No. 7804
  prescribing rules and regulations to govern the filing of manifestation of
8
intent to participate and submission of names of nominees under the
party-list system of representation in connection with the May 14,
2007 elections. Pursuant thereto, a number of organized groups filed the
necessary manifestations. Among these – and ostensibly subsequently
accredited by the Comelec to participate in the 2007 elections - are 14
party-list groups, namely: (1) BABAE KA; (2)  ANG KASANGGA; (3) AKBAY
PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY;
(8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG KABUHAYAN;
(11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14)AGING
PINOY.  Petitioners BA-RA 7941 and UP-LR presented a longer, albeit an
overlapping, list.
 
Subsequent events saw BA-RA 7941 and UP-LR filing with the
Comelec an Urgent Petition to Disqualify,  thereunder seeking to
disqualify the nominees of certain party-list
organizations. Both petitioners appear not to have the names of the
nominees sought to be disqualified since they still asked for a copy of
the list of nominees. Docketed in the Comelec as SPA Case No 07-026,
thisurgent petition has yet to be resolved.  nominees of herein private respondents are
 
          Meanwhile, reacting to the emerging public perception that the
individuals behind the aforementioned 14 party-list groups do not, as
they should, actually represent the poor and marginalized sectors,
petitioner Rosales, in G.R. No. 177314, addressed a letter[5] dated March
29, 2007 to Director Alioden Dalaig of the Comelec’s Law Department
requesting a list of that groups’ nominees. Another letter [6] of the same
tenor dated  March 31, 2007 followed, this time petitioner Rosales
impressing upon Atty. Dalaig the particular urgency of the subject
request.
 
          Neither the Comelec Proper nor its Law Department officially
responded to petitioner Rosales’ requests. The  April 13, 2007issue of
the Manila Bulletin, however, carried the front-page banner headline
“COMELEC WON’T BARE PARTY-LIST NOMINEES”, [7] with the following
sub-heading: “Abalos says party-list polls not personality oriented.”
On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator
Jovito R. Salonga, in their own behalves and as counsels of petitioner
Rosales, forwarded a letter[8]  to the Comelec formally requesting action
and definitive decision on Rosales’ earlier plea for information regarding
the names of several party-list nominees. Invoking their constitutionally-
guaranteed right to information, Messrs. Capulong and Salonga at the
same time drew attention to the banner headline adverted to earlier,
with a request for the Comelec, “collectively or individually, to issue a
formal clarification, either confirming or denying … the banner headline
and the alleged statement of Chairman Benjamin Abalos, Sr. xxx”
Evidently unbeknownst then to Ms. Rosales, et al., was the issuance
of Comelec en banc Resolution 07-0724[9] under date April 3, 2007
virtually declaring the nominees’ names confidential and in net effect
denying  petitioner Rosales’ basic disclosure request. In its relevant
part, Resolution 07-0724 reads as follows:
 
                   RESOLVED, moreover, that the Commission
will disclose/publicize the names of party-list
nominees in connection with the May 14,
2007Elections only after 3:00 p.m. on election day.
 
                        Let the Law Department implement this
resolution and reply to all letters addressed to the
Commission inquiring on the party-list nominees.
(Emphasis added.)  7941 is there a requirement that the qualification of a party-list nominee
 
          According to petitioner Rosales, she was able to obtain a copy of
the April 3, 2007 Resolution only on April 21, 2007. Shewould
later state the observation that the last part of the “Order empowering
the Law Department to ‘implement this resolution and reply to all letters
… inquiring on the party-list nominees’ is apparently a fool-proof
bureaucratic way to distort and mangle the truth and give the
impression that the antedated Resolution of April 3, 2007 … is the final
answer to the two formal requests … of Petitioners”.[10]
 
          The herein consolidated petitions are cast against the
foregoing factual  setting, albeit petitioners BA-RA 7941 and UP-LR
appear not  to be aware, when they filed their petition on April 18,
2007,  of the April 3, 2007 Comelec Resolution 07-0724.
 
          To start off, petitioners BA-RA 7941 and UP-LR would have the
Court cancel the accreditation accorded by the Comelec to the
respondent party-list groups named in their petition on the ground that
these groups and their respective  nominees do not appear to be
qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec -
 
xxx committed grave abuse of discretion
… when it granted the assailed accreditations even
without simultaneously determining whether the
qualified or not, or whether or not the nominees
are likewise belonging to the marginalized and
underrepresented sector they claim to represent in
Congress, in accordance with No. 7 of the eight-
point guidelines prescribed by the Honorable
Supreme in the Ang Bagong Bayani [11] case which
states that, “not only the candidate party or
organization must represent marginalized and
underrepresented sectors; so also must its
nominees.” In the case of private respondents,
public respondent Comelec granted accreditations
without the required simultaneous determination
of the qualification of the nominees as part of the
accreditation process of the party-list organization
itself.(Words in bracket added; italization in the
original)[12]
 
The Court is unable to grant the desired plea of petitioners
BA-RA 7941 and UP-LR for cancellation of accreditation on the
grounds thus  advanced in their petition. For, such course of action
would entail going  over and  evaluating  the  qualities  of  the sectoral
groups or parties in question, particularly whether or not they indeed
represent marginalized/underrepresented groups. The exercise would
require the Court to make a factual determination, a matter  which is
outside the office of judicial review by way of special civil action
for certiorari. In certiorari proceedings, the Court is not called upon to
decide factual issues and the case must be decided on the undisputed
facts on record.[13] The sole function of a writ of certiorari is to address
issues of want of jurisdiction or grave abuse of discretion and does not
include a review of the tribunal’s evaluation of the evidence. [14] 
 
Not lost on the Court of course is the pendency before the
Comelec of SPA Case No. 07-026 in which petitioners BA-RA 7941
and  UP-LR themselves seek to disqualify  the nominees of the
respondent party-list groups named in their petition.    
 
Petitioners BA-RA 7941’s and UP-LR’s posture that the
Comelec committed grave abuse of discretion when it granted the
assailed accreditations without simultaneously determining the
qualifications of their nominees is without basis. Nowhere in R.A. No.
be determined simultaneously with the accreditation of an organization.
And as aptly pointed out by private respondent Babae Para sa Kaunlaran
(Babae Ka), Section 4 of R.A. No. 7941 requires a petition for registration
of a party-list organization to be filed with the Comelec “not later than
ninety (90) days before the election” whereas the succeeding Section 8
requires the submission “not later than forty-five (45) days before
9
the  election” of the list of names whence party-list representatives shall
be chosen.
Now to the other but core issues of the case.  The petition
in G.R. No. 177314  formulates and captures the main issues tendered by
the petitioners in these consolidated cases and they may be summarized
as follows:  
 
1.                  Whether respondent Comelec, by
refusing to reveal the names of the
nominees of the various party-list
groups, has violated the right to
information and free access
to documents as guaranteed by  the
Constitution; and
2.                  Whether respondent
Comelec is mandated by the Constitution
to disclose to the public the names of
said nominees.
 
While the Comelec did not explicitly say so, it based its refusal
to disclose the names of the nominees of subject party-list groups on
Section 7 of R.A. 7941. This provision, while commanding
the publication  and the posting in polling places of   acertified list of
party-list system participating groups,  nonetheless tells the Comelec not
to show or include the names of the party-list nominees in said  certified
list. Thus:
 
SEC. 7. Certified List of Registered
Parties.- The COMELEC shall, not later than sixty
(60) days before election, prepare a certified list of
national, regional, or sectoral parties, organizations
or coalitions which have applied or who have
manifested their desire to participate under the
party-list system and distribute  copies thereof to
all precincts for posting in the polling places on
election day. The names of the party-list nominees
shall not be shown on the certified list. (Emphasis
added.)
 
And doubtless part of Comelec’s reason for keeping the
names of the party list nominees away from the public is deducible from
the following excerpts of the news report appearing in the
adverted April 13, 2007 issue of the Manila Bulletin:
 
The Commission on Elections (COMELEC)
firmed up yesterday its decision not to release the
names of nominees of sectoral parties,
organizations, or coalitions accredited to participate
in the party-list election which will be held
simultaneously with the May 14 mid-term polls.
 
 COMELEC  Chairman Benjamin S. Abalos,
Sr. … said he and [the other five COMELEC]
Commissioners --- believe that the party list
elections must not be personality oriented.
 
Abalos said under [R.A.] 7941 …,
the people are to vote for sectoral parties,
organizations, or coalitions, not for their nominees.
 
He said there is nothing in R.A. 7941 that
requires the Comelec to disclose the names of
nominees. xxx (Words in brackets and emphasis
added)
Insofar as the disclosure issue is concerned, the petitions are
impressed with merit.
 Assayed against the non-disclosure stance of the Comelec
and the given rationale therefor is the right to information enshrined in
the self-executory[15] Section 7, Article III of the Constitution, viz:
 
Sec.7. The right of the people to
information on matters of public concern shall be
recognized. Access to official records, and to
documents, and papers pertaining to official acts,
transactions, or decisions, as well to government
research data used as basis for policy development,
shall be afforded the citizen, subject to such
limitations as may be provided by law.
 
 Complementing and going hand in hand with the right to
information is another constitutional provision enunciating the policy of
full disclosure and transparency in Government. We refer to Section 28,
Article II of the Constitution reading:
 
Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and implements
a policy of full public disclosure of all its
transactions involving public interest.
 
 
          The right to information is a public right where the real parties in
interest are the public, or the citizens to be precise. And for every right
of the people recognized as fundamental lies a corresponding duty on
the part of those who govern to respect and protect that right.  This is
the essence of the Bill of Rights in a constitutional regime. [16] Without a
government’s acceptance of the limitations upon it by the Constitution
in order to uphold individual liberties, without an acknowledgment on
its part of those duties exacted by the rights pertaining to the
citizens, the Bill of Rights becomes a sophistry.
 
          By weight of jurisprudence, any citizen can challenge any attempt
to obstruct the exercise of his right to information and may seek its
enforcement by mandamus.[17] And since every citizen by the simple fact
of his citizenship possesses the right to be informed, objections on
ground of  locus  standi are  ordinarily unavailing.[18]
 
  Like all constitutional guarantees, however, the right to
information and its companion right of access to official records are not
absolute. As articulated in Legaspi, supra,  the people’s right to know is
limited to “matters of public concern” and is further subject to such
limitation as may be provided by law.  Similarly, the policy of full
disclosure is confined to transactions involving “public interest” and is
subject to reasonable conditions prescribed by law. Too, there is also the
need of preserving a measure of confidentiality on some matters, such
as military, trade, banking and diplomatic secrets or those affecting
national security.[19]
 
The terms “public concerns” and “public interest” have eluded
precise definition. But both terms embrace, to borrow fromLegaspi, a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives, or simply because such matters
naturally whet the interest of an ordinary citizen. At the end of the day,
it is for the courts to determine, on a case to case basis, whether or not
at issue is of interest or importance to the public.
 
If, as in Legaspi, it was the legitimate concern of a citizen to
know if certain persons employed as sanitarians of a health department
of a city  are civil service eligibles, surely the identity of candidates for a
10
lofty elective public office should be a matter of highest public concern party-list groups, sectors or organizations accredited to participate in
and interest. the May 14, 2007 party-list elections. The Comelec is
  further DIRECTED to submit to the Court its compliance herewith within
As may be noted, no national security or like concerns is five (5) days from notice hereof.
involved in the disclosure of the names of the nominees of the party-list  
groups in question. Doubtless, the Comelec committed grave abuse of           This Decision is declared immediately executory upon its receipt by
discretion in refusing the legitimate demands of the petitioners for a list the Comelec.
of the nominees of the party-list groups subject of their respective  
petitions. Mandamus, therefore, lies.           No pronouncement as to cost.
   
 The last sentence of Section 7 of R.A. 7941 reading: “[T]he           SO ORDERED.
names of the party-list nominees shall not be shown on the certified
list” is certainly  not a  justifying card for the Comelec to deny the
requested disclosure.  To us, the prohibition imposed on the Comelec
under said Section 7 is limited in scope and duration, meaning, that it
extends only to the certified list which the same provision requires to be
posted in the polling places on election day. To stretch the coverage of
the prohibition to the absolute is to read into the law something that is
not intended. As it were, there is absolutely nothing  in R.A. No. 7941
that prohibits the Comelec from disclosing or even publishing through
mediums other than the “Certified List” the names of the party-list
nominees. The Comelec obviously misread the limited non-disclosure
aspect of the provision as an absolute bar to public disclosure before the
May 2007 elections. The interpretation thus given by the Comelec
virtually tacks an unconstitutional dimension on the last sentence of
Section 7 of  R.A. No. 7941.   
 
 The Comelec’s reasoning that a party-list election is not an
election of personalities is valid to a point. It cannot be taken, however,
to justify its assailed non-disclosure stance which comes, as it were, with
a weighty presumption of invalidity, impinging, as it does, on a
fundamental right to information. [20]  While the vote cast in a party-list
elections is a vote for a party, such vote, in the end, would be a vote for
its nominees, who, in appropriate cases, would eventually sit in the
House of Representatives.
 
The Court is very much aware of newspaper reports detailing
the purported reasons behind the Comelec’s disinclination to release the
names of  party-list nominees. It is to be stressed, however, that the
Court is in the business of dispensing justice on the basis of hard facts
and applicable statutory and decisional laws. And lest it be overlooked,
the Court always assumes, at the first instance, the presumptive validity
and regularity of official acts of government officials and offices.  
 
It has been repeatedly said in various contexts that the people
have the right to elect their representatives on the basis of an informed
judgment. Hence the need for voters to be informed about matters that
have a bearing on their choice. The ideal cannot be achieved in a system
of blind voting, as veritably advocated in the assailed resolution of the
Comelec. The Court, since the 1914 case of Gardiner v. Romulo,[21]  has
consistently made it clear that it frowns upon any interpretation of the
law or rules that would hinder in any way the free and intelligent casting
of the votes in an election. [22] So it must be here for still other reasons
articulated earlier.     
 
In all, we agree with the petitioners that respondent Comelec
has a constitutional duty to disclose and release the names of the
nominees of the party-list groups named in the herein petitions.
  EN BANC
          WHEREFORE, the petition in G.R. No. 177271 is  
partly DENIED insofar as it seeks to nullify the accreditation of the
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA), G.R. N
respondents named therein. However, insofar as it seeks to compel the
represented by its National President (BOCEA National Presen
Comelec to disclose or publish the names of the nominees of party-list
Executive Council) Mr. Romulo A. Pagulayan,  
groups, sectors or organizations accredited to participate in the May 14,
                                          Petitioner, CORO
2007 elections, the same petition and the petition inG.R. No.
  CARPI
177314  are GRANTED. Accordingly, the Comelec is hereby ORDERED to
  VELAS
immediately disclose and release the names of the nominees of the
11
 and procedures for removing from the service
  LEONARDO-DE CASTRO,
officials and employees whose revenue collection
                        - versus - BRION,
falls short of the target; (3) terminate personnel in
  PERALTA,
accordance with the criteria adopted by the Board;
  BERSAMIN,
(4) prescribe a system for performance evaluation;
  DEL
(5) perform other functions, including the issuance
HON. MARGARITO B. TEVES, in his capacity as Secretary of the ABAD,
of rules and regulations and (6) submit an annual
Department of Finance, HON. NAPOLEON L. MORALES, in his VILLARAMA, JR.,
report to Congress.
capacity as Commissioner of the Bureau of Customs, HON. PEREZ,
            The DOF, DBM, NEDA, BIR, BOC and the Civil
LILIAN B. HEFTI, in her capacity as Commissioner of the Bureau MENDOZA,
Service Commission (CSC) were tasked to
of Internal Revenue, SERENO,
promulgate and issue the implementing rules and
                                        Respondents. REYES, and
regulations of RA [No.] 9335, to be approved by a
PERLAS-BERNABE,
Joint Congressional Oversight Committee created
 
for such purpose.[5]
Promulgated:
The Joint Congressional Oversight Committee approved the
December 6, 2011
assailed IRR on May 22, 2006. Subsequently, the IRR was published on
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x May 30, 2006 in two newspapers of general circulation, the Philippine
  Star and the Manila Standard, and became effective fifteen (15) days
DECISION later.[6]
VILLARAMA, JR., J.:           Contending that the enactment and implementation of R.A. No.
Before this Court is a petition[1] for certiorari and prohibition 9335 are tainted with constitutional infirmities in violation of the
with prayer for injunctive relief/s under Rule 65 of the 1997 Rules of Civil fundamental rights of its members, petitioner Bureau of Customs
Procedure, as amended, to declare Republic Act (R.A.) No. 9335, Employees Association (BOCEA), an association of rank-and-file
[2]
 otherwise known as the Attrition Act of 2005, and its Implementing employees of the Bureau of Customs (BOC), duly registered with the
Rules and Regulations[3] (IRR) unconstitutional, and the implementation Department of Labor and Employment (DOLE) and the Civil Service
thereof be enjoined permanently. Commission (CSC), and represented by its National President, Mr.
The Facts Romulo A. Pagulayan (Pagulayan), directly filed the present petition
            On January 25, 2005, former President Gloria Macapagal-Arroyo before this Court against respondents Margarito B. Teves, in his capacity
signed into law R.A. No. 9335 which took effect onFebruary 11, 2005. as Secretary of the Department of Finance (DOF), Commissioner
  Napoleon L. Morales (Commissioner Morales), in his capacity as BOC
In Abakada Guro Party List v. Purisima [4] (Abakada), we said of Commissioner, and Lilian B. Hefti, in her capacity as Commissioner of the
R.A. No. 9335:   Bureau of Internal Revenue (BIR).  In its petition, BOCEA made the
RA [No.] 9335 was enacted to optimize following averments:
the revenue-generation capability and collection of           Sometime in 2008, high-ranking officials of the BOC pursuant to
the Bureau of Internal Revenue (BIR) and the the mandate of R.A. No. 9335 and its IRR, and in order to comply with
Bureau of Customs (BOC). The law intends to the stringent deadlines thereof, started to disseminate Collection
encourage BIR and BOC officials and employees to District Performance Contracts [7] (Performance Contracts) for the lower
exceed their revenue targets by providing a system ranking officials and rank-and-file employees to sign. The Performance
of rewards and sanctions through the creation of a Contract pertinently provided:
Rewards and Incentives Fund (Fund) and a Revenue xxxx
Performance Evaluation Board (Board).  It covers all WHEREAS, pursuant to the provisions of Sec. 25 (b)
officials and employees of the BIR and the BOC with of the Implementing Rules and Regulations (IRR) of
at least six months of service, regardless of the Attrition Act of 2005, that provides for the
employment status. setting of criteria and procedures for removing
The Fund is sourced from the collection from the service Officials and Employees whose
of the BIR and the BOC in excess of their revenue revenue collection fall short of the target in
targets for the year, as determined by the accordance with Section 7 of Republic Act 9335.
Development Budget and Coordinating Committee xxxx
(DBCC). Any incentive or reward is taken from the NOW, THEREFORE, for and in consideration of the
fund and allocated to the BIR and the BOC in foregoing premises, parties unto this Agreement
proportion to their contribution in the excess hereby agree and so agreed to perform the
collection of the targeted amount of tax revenue. following:
The Boards in the BIR and the BOC are xxxx
composed of the Secretary of the Department of 2. The “Section 2, PA/PE” hereby accepts the
Finance (DOF) or his/her Undersecretary, the allocated Revenue Collection Target and further
Secretary of the Department of Budget and accepts/commits to meet the said target under the
Management (DBM) or his/her Undersecretary, the following conditions:
Director General of the National Economic a.)                That he/she will meet the allocated
Development Authority (NEDA) or his/her Deputy Revenue Collection Target and thereby undertakes
Director General, the Commissioners of the BIR and and binds himself/herself that in the event the
the BOC or their Deputy Commissioners, two revenue collection falls short of the target with
representatives from the rank-and-file employees due consideration of all relevant factors affecting
and a representative from the officials nominated the level of collection as provided in the rules and
by their recognized organization. regulations promulgated under the Act and its IRR,
Each Board has the duty to (1) prescribe he/she will voluntarily submit to the provisions of
the rules and guidelines for the allocation, Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
distribution and release of the Fund; (2) set criteria  
12
 b.)                That he/she will cascade and/or allocate
to respective Appraisers/Examiners or Employees
under his/her section the said Revenue Collection
Target and require them to execute a Performance
Contract, and direct them to accept their individual
target. The Performance Contract executed by the
respective Examiners/Appraisers/Employees shall
be submitted to the Office of the Commissioner
through the LAIC on or before March 31, 2008.
 
x x x x[8]
 
 
BOCEA opined that the revenue target was impossible to
meet due to the Government’s own policies on reduced tariff rates and
tax breaks to big businesses, the occurrence of natural calamities and
because of other economic factors. BOCEA claimed that some BOC
employees were coerced and forced to sign the Performance Contract.
The majority of them, however, did not sign. In particular, officers of
BOCEA were summoned and required to sign the Performance Contracts
but they also refused. To ease the brewing tension, BOCEA claimed that
its officers sent letters, and sought several dialogues with BOC officials
but the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales
exerted heavy pressure on the District Collectors, Chiefs of Formal Entry
Divisions, Principal Customs Appraisers and Principal Customs Examiners
of the BOC during command conferences to make them sign their
Performance Contracts. Likewise, BOC Deputy Commissioner Reynaldo
Umali (Deputy Commissioner Umali) individually spoke to said personnel
to convince them to sign said contracts. Said personnel were threatened
that if they do not sign their respective Performance Contracts, they
would face possible reassignment, reshuffling, or worse, be placed on
floating status. Thus, all the District Collectors, except a certain Atty.
Carlos So of the Collection District III of the Ninoy Aquino International
Airport (NAIA), signed the Performance Contracts.
 
BOCEA further claimed that Pagulayan was constantly
harassed and threatened with lawsuits. Pagulayan approached Deputy
Commissioner Umali to ask the BOC officials to stop all forms of
harassment, but the latter merely said that he would look into the
matter. On February 5, 2008, BOCEA through counsel wrote the Revenue
Performance Evaluation Board (Board) to desist from implementing R.A.
No. 9335 and its IRR and from requiring rank-and-file employees of the
BOC and BIR to sign Performance Contracts. [9] In his letter-
reply[10] dated February 12, 2008, Deputy Commissioner Umali denied
having coerced any BOC employee to sign a Performance Contract. He
also defended the BOC, invoking its mandate of merely implementing
the law. Finally, Pagulayan and BOCEA’s counsel, on separate occasions,
requested for a certified true copy of the Performance Contract from
Deputy Commissioner Umali but the latter failed to furnish them a copy.
[11]
 
          This petition was filed directly with this Court on March 3, 2008.
BOCEA asserted that in view of the unconstitutionality of R.A. No. 9335
and its IRR, and their adverse effects on the constitutional rights of BOC
officials and employees, direct resort to this Court is justified. BOCEA
argued, among others, that its members and other BOC employees are
in great danger of losing their jobs should they fail to meet the required
quota provided under the law, in clear violation of their constitutional
right to security of tenure, and at their and their respective families’
prejudice.   WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND
 
          In their Comment,[12] respondents, through the Office of the
Solicitor General (OSG), countered that R.A. No. 9335 and its IRR do not
violate the right to due process and right to security of tenure of BIR and
BOC employees. The OSG stressed that the guarantee of security of
tenure under the 1987 Constitution is not a guarantee of perpetual
employment. R.A. No. 9335 and its IRR provided a reasonable and valid
ground for the dismissal of an employee which is germane to the
purpose of the law. Likewise, R.A. No. 9335 and its IRR provided that an
employee may only be separated from the service upon compliance with
substantive and procedural due process. The OSG added that R.A. No.
9335 and its IRR must enjoy the presumption of constitutionality.
 
          In its Reply,[13] BOCEA claimed that R.A. No. 9335 employs means
that are unreasonable to achieve its stated objectives; that the law is
unduly oppressive of BIR and BOC employees as it shifts the extreme
burden upon their shoulders when the Government itself has adopted
measures that make collection difficult such as reduced tariff rates to
almost zero percent and tax exemption of big businesses; and that the
law is discriminatory of BIR and BOC employees. BOCEA manifested that
only the high-ranking officials of the BOC benefited largely from the
reward system under R.A. No. 9335 despite the fact that they were not
the ones directly toiling to collect revenue. Moreover, despite the
BOCEA’s numerous requests, [14] BOC continually refused to provide
BOCEA the Expenditure Plan on how such reward was distributed. 
Since BOCEA was seeking similar reliefs as that of the
petitioners in Abakada Guro Party List v. Purisima, BOCEA filed a Motion
to Consolidate[15] the present case with Abakada on April 16,
2008.  However, pending action on said motion, the Court rendered its
decision in Abakada on August 14, 2008. Thus, the consolidation of this
case with Abakada was rendered no longer possible.[16]    
In Abakada, this Court, through then Associate Justice, now
Chief Justice Renato C. Corona, declared Section 12 [17] of R.A. No. 9335
creating a Joint Congressional Oversight Committee to approve the IRR
as unconstitutional and violative of the principle of separation of
powers.  However, the constitutionality of the remaining provisions of
R.A. No. 9335 was upheld pursuant to Section 13 [18] of R.A. No. 9335. The
Court also held that until the contrary is shown, the IRR of R.A. No. 9335
is presumed valid and effective even without the approval of the Joint
Congressional Oversight Committee.[19]
Notwithstanding our ruling in Abakada, both parties complied
with our Resolution[20] dated February 10, 2009, requiring them to
submit their respective Memoranda.
The Issues
          BOCEA raises the following issues:
 
I.
 
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC
ACT [NO.] 9335, AND ITS IMPLEMENTING RULES
AND REGULATIONS ARE UNCONSTITUTIONAL AS
THESE VIOLATE THE RIGHT TO DUE PROCESS OF
THE COVERED BIR AND BOC OFFICIALS AND
EMPLOYEES[;]
 
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC
ACT [NO.] 9335, AND ITS IMPLEMENTING RULES
AND REGULATIONS ARE UNCONSTITUTIONAL AS
THESE VIOLATE THE RIGHT OF BIR AND BOC
OFFICIALS AND EMPLOYEES TO THE EQUAL
PROTECTION OF THE LAWS[;]
 
III.
 
ITS IMPLEMENTING RULES AND REGULATIONS
VIOLATE THE RIGHT TO SECURITY OF TENURE OF
BIR AND BOC OFFICIALS AND EMPLOYEES AS
ENSHRINED UNDER SECTION 2 (3), ARTICLE IX (B)
OF THE CONSTITUTION[;]
 
13
 IV.
 
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND
ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE
DELEGATION OF LEGISLATIVE POWERS TO THE
REVENUE PERFORMANCE EVALUATION BOARD IN
VIOLATION OF THE PRINCIPLE OF SEPARATION OF
POWERS ENSHRINED IN THE CONSTITUTION[; AND]
 
V.
 
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A
BILL OF ATTAINDER AND HENCE[,]
UNCONSTITUTIONAL BECAUSE IT INFLICTS
PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A
PARTICULAR GROUP OR CLASS OF OFFICIALS AND
EMPLOYEES WITHOUT TRIAL.[21]  3.     R.A. No. 9335 and its IRR violate the BIR and
 
          BOCEA manifested that while waiting for the Court to give due
course to its petition, events unfolded showing the patent
unconstitutionality of R.A. No. 9335. It narrated that during the first year
of the implementation of R.A. No. 9335, BOC employees exerted
commendable efforts to attain their revenue target of P196 billion which
they surpassed by as much as P2 billion for that year alone. However,
this was attained only because oil companies made advance tax
payments to BOC.  Moreover, BOC employees were given their “reward”
for surpassing said target only in 2008, the distribution of which they
described as unjust, unfair, dubious and fraudulent because only top
officials of BOC got the huge sum of reward while the employees, who
did the hard task of collecting, received a mere pittance of
around P8,500.00. In the same manner, the Bonds Division of BOC-NAIA
collected 400+% of its designated target but the higher management
gave out to the employees a measly sum of P8,500.00 while the top
level officials partook of millions of the excess collections.  BOCEA relies
on a piece of information revealed by a newspaper showing the list of
BOC officials who apparently earned huge amounts of money by way of
reward.[22] It claims that the recipients thereof included lawyers, support
personnel and other employees, including a dentist, who performed no
collection functions at all. These alleged anomalous selection,
distribution and allocation of rewards was due to the failure of R.A. No.
9335 to set out clear guidelines.[23]  5.     R.A. No. 9335 is a bill of attainder because it
          In addition, BOCEA avers that the Board initiated the first few
cases of attrition for the Fiscal Year 2007 by subjecting five BOC officials
from the Port of Manila to attrition despite the fact that
the Port of Manila substantially complied with the provisions of R.A. No.
9335.  It is thus submitted that the selection of these officials for
attrition without proper investigation was nothing less than arbitrary.
Further, the legislative and executive departments’ promulgation of
issuances and the Government’s accession to regional trade agreements
have caused a significant diminution of the tariff rates, thus, decreasing
over-all collection. These unrealistic settings of revenue targets seriously
affect BIR and BOC employees tasked with the burden of collection, and
worse, subjected them to attrition.[24]
          BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on
the following grounds:
1.     R.A. No. 9335 and its IRR violate the BIR and
BOC employees’ right to due process because
the termination of employees who had not
attained their revenue targets for the year is
peremptory and done without any form of
hearing to allow said employees to ventilate
their side. Moreover, R.A. No. 9335 and its IRR
do not comply with the requirements under
CSC rules and regulations as the dismissal in
this case is immediately executory. Such
immediately executory nature of the Board’s
decision negates the remedies available to an
employee as provided under the CSC rules.
 
2.      R.A. No. 9335 and its IRR violate the BIR and
BOC employees’ right to equal protection of
the law because R.A. No. 9335 and its IRR
unduly discriminates against BIR and BOC
employees as compared to employees of
other revenue generating government
agencies like the Philippine Amusement and
Gaming Corporation, Department of
Transportation and Communication, the Air
Transportation Office, the Land Transportation
Office, and the Philippine Charity Sweepstakes
Office, among others, which are not subject to
attrition.
 
BOC employees’ right to security of tenure
because R.A. No. 9335 and its IRR effectively
removed remedies provided in the ordinary
course of administrative procedure afforded
to government employees. The law likewise
created another ground for
dismissal, i.e., non-attainment of revenue
collection target, which is not provided under
CSC rules and which is, by its nature,
unpredictable and therefore arbitrary and
unreasonable.
 
4.     R.A. No. 9335 and its IRR violate the 1987
Constitution because Congress granted to the
Revenue Performance Evaluation Board
(Board) the unbridled discretion of
formulating the criteria for termination, the
manner of allocating targets, the distribution
of rewards and the determination of relevant
factors affecting the targets of collection,
which is tantamount to undue delegation of
legislative power.
 
inflicts punishment upon a particular group or
class of officials and employees without trial.
This is evident from the fact that the law
confers upon the Board the power to impose
the penalty of removal upon employees who
do not meet their revenue targets; that the
same is without the benefit of hearing; and
that the removal from service is immediately
executory. Lastly, it disregards the
presumption of regularity in the performance
of the official functions of a public officer.
[25]
 
          On the other hand, respondents through the OSG stress that
except for Section 12 of R.A. No. 9335, R.A. No. 9335 and its IRR are
constitutional, as per our ruling in Abakada. Nevertheless, the OSG
argues that the classification of BIR and BOC employees as public officers
under R.A. No. 9335 is based on a valid and substantial distinction since
the revenue generated by the BIR and BOC is essentially in the form of
taxes, which is the lifeblood of the State, while the revenue produced by
other agencies is merely incidental or secondary to their governmental
functions; that in view of their mandate, and for purposes of tax
collection, the BIR and BOC are sui generis; that R.A. No. 9335 complies
with the “completeness” and “sufficient standard” tests for the
permissive delegation of legislative power to the Board; that the Board
14
exercises its delegated power consistent with the policy laid down in the allowed as an exception to this principle. Given the
law, that is, to optimize the revenue generation capability and collection volume and variety of interactions in today’s
of the BIR and the BOC; that parameters were set in order that the society, it is doubtful if the legislature can
Board may identify the officials and employees subject to attrition, and promulgate laws that will deal adequately with and
the proper procedure for their removal in case they fail to meet the respond promptly to the minutiae of everyday life.
targets set in the Performance Contract were provided; and that the Hence, the need to delegate to administrative
rights of BIR and BOC employees to due process of law and security of bodies — the principal agencies tasked to execute
tenure are duly accorded by R.A. No. 9335. The OSG likewise maintains laws in their specialized fields — the authority to
that there was no encroachment of judicial power in the enactment of promulgate rules and regulations to implement a
R.A. No. 9335 amounting to a bill of attainder since R.A. No. 9335 and its given statute and effectuate its policies. All that is
IRR merely defined the offense and provided for the penalty that may be required for the valid exercise of this power of
imposed. Finally, the OSG reiterates that the separation from the service subordinate legislation is that the regulation be
of any BIR or BOC employee under R.A. No. 9335 and its IRR shall be germane to the objects and purposes of the law
done only upon due consideration of all relevant factors affecting the and that the regulation be not in contradiction to,
level of collection, subject to Civil Service laws, rules and regulations, but in conformity with, the standards prescribed by
and in compliance with substantive and procedural due process. The the law. These requirements are denominated as
OSG opines that the Performance Contract, far from violating the BIR the completeness test and the sufficient standard
and BOC employees’ right to due process, actually serves as a notice of test.[32]
the revenue target they have to meet and the possible consequences of           Thus, in Abakada, we held,
failing to meet the same.  More, there is nothing in the law which Two tests determine the validity of
prevents the aggrieved party from appealing the unfavorable decision of delegation of legislative power: (1) the
dismissal.[26] completeness test and (2) the sufficient standard
          In essence, the issues for our resolution are: test. A law is complete when it sets forth therein
1.     Whether there is undue delegation of the policy to be executed, carried out or
legislative power to the Board; implemented by the delegate. It lays down a
  sufficient standard when it provides adequate
2.     Whether R.A. No. 9335 and its IRR violate the guidelines or limitations in the law to map out the
rights of BOCEA’s members to:  (a) equal boundaries of the delegate’s authority and prevent
protection of laws, (b) security of tenure and the delegation from running riot. To be sufficient,
(c) due process; and the standard must specify the limits of the
  delegate’s authority, announce the legislative policy
3.     Whether R.A. No. 9335 is a bill of attainder. and identify the conditions under which it is to be
  implemented.
Our Ruling  
          Prefatorily, we note that it is clear, and in fact uncontroverted, that RA [No.] 9335 adequately states the
BOCEA has locus standi. BOCEA impugns the constitutionality of R.A. No. policy and standards to guide the President in fixing
9335 and its IRR because its members, who are rank-and-file employees revenue targets and the implementing agencies in
of the BOC, are actually covered by the law and its IRR. BOCEA’s carrying out the provisions of the law. Section 2
members have a personal and substantial interest in the case, such that spells out the policy of the law:
they have sustained or will sustain, direct injury as a result of the  
enforcement of R.A. No. 9335 and its IRR.[27] “SEC. 2. Declaration of Policy.
          However, we find no merit in the petition and perforce dismiss the — It is the policy of the State to optimize
same. the revenue-generation capability and
          It must be noted that this is not the first time the constitutionality collection of the Bureau of Internal
of R.A. No. 9335 and its IRR are being challenged. The Court already Revenue (BIR) and the Bureau of
settled the majority of the same issues raised by BOCEA in our decision Customs (BOC) by providing for a system
in Abakada, which attained finality onSeptember 17, 2008. As such, our of rewards and sanctions through the
ruling therein is worthy of reiteration in this case. creation of a Rewards and Incentives
          We resolve the first issue in the negative. Fund and a Revenue Performance
          The principle of separation of powers ordains that each of the Evaluation Board in the above agencies
three great branches of government has exclusive cognizance of and is for the purpose of encouraging their
supreme in matters falling within its own constitutionally allocated officials and employees to exceed their
sphere.[28] Necessarily imbedded in this doctrine is the principle of non- revenue targets.”
delegation of powers, as expressed in the Latin maxim potestas delegata  
non delegari potest,  which means “what has been delegated, cannot be Section 4 “canalized within banks that
delegated.” This doctrine is based on the ethical principle that such keep it from overflowing” the delegated power to
delegated power constitutes not only a right but a duty to be performed the President to fix revenue targets:
by the delegate through the instrumentality of his own judgment and  
not through the intervening mind of another. [29] However, this principle “SEC. 4. Rewards and
of non-delegation of powers admits of numerous exceptions, [30] one of Incentives Fund. — A Rewards and
which is the delegation of legislative power to various specialized Incentives Fund, hereinafter referred to
administrative agencies like the Board in this case. as the Fund, is hereby created, to be
          The rationale for the aforementioned exception was clearly sourced from the collection of the BIR
explained in our ruling in Gerochi v. Department of Energy,[31] to wit: and the BOC in excess of their respective
          In the face of the increasing complexity of revenue targets of the year, as
modern life, delegation of legislative power to determined by the Development Budget
various specialized administrative agencies is
15
 and Coordinating Committee (DBCC), in
the following percentages:
 
Excess of Collection
[Over] the Revenue
Targets
30% or below
More than 30%
 
The Fund shall be deemed
automatically appropriated the year
immediately following the year when the
revenue collection target was exceeded
and shall be released on the same fiscal
year.
 
Revenue targets shall refer to
the original estimated
collection expected of the BIR and the
BOC for a given fiscal year as stated in
the Budget of Expenditures and Sources
of Financing (BESF) submitted by the
President to Congress. The BIR and the
BOC shall submit to the DBCC the
distribution of the agencies’ revenue
targets as allocated among its revenue
districts in the case of the BIR, and the
collection districts in the case of the
BOC.  
x x x                      x x x                x x x”
 
Revenue targets are based on the original
estimated revenue collection expected respectively
of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF
submitted by the President to Congress. Thus, the
determination of revenue targets does not rest
solely on the President as it also undergoes the
scrutiny of the DBCC.
 
On the other hand, Section 7 specifies the
limits of the Board’s authority and identifies the
conditions under which officials and employees
whose revenue collection falls short of the target by
at least 7.5% may be removed from the service:
 
“SEC. 7. Powers and Functions
of the Board. — The Board in the agency
shall have the following powers and
functions:
 
x x x                      x x x                x
xx
 
(b) To set the criteria and
procedures for removing from service
officials and employees whose revenue
collection falls short of the target by at
least seven and a half percent (7.5%),
with due consideration of all relevant
factors affecting the level
collection as provided in the rules and
regulations promulgated under this
Act, subject to civil service laws, rules
and regulations and compliance with
substantive and procedural due
process: Provided, That the following
exemptions shall apply:
  Percent (%) of the  
Excess Collection to 1.      Where the district
Accrue to the Fund or area of responsibility is newly-
— 15% created, not exceeding two years in
— 15% of the first 30% operation, and has no historical
plus 20% of the record of collection performance
remaining excess that can be used as basis for
evaluation; and
 
2.      Where the revenue
or customs official or employee is a
recent transferee in the middle of
the period under consideration
unless the transfer was due to
nonperformance of revenue targets
or potential nonperformance of
revenue revenue targets: Provided, however,
That when the district or area of
responsibility covered by revenue or
customs officials or employees has
suffered from economic difficulties
brought about by natural calamities
or force majeure or economic
causes as may be determined by the
Board, termination shall be
considered only after careful and
proper review by the Board.   
 
(c) To terminate personnel in
accordance with the criteria adopted in
the preceding paragraph: Provided, That
such decision shall be immediately
executory: Provided, further, That the
application of the criteria for the
separation of an official or employee
from service under this Act shall be
without prejudice to the application of
other relevant laws on accountability of
public officers and employees, such as
the Code of Conduct and Ethical
Standards of Public Officers and
Employees and the Anti-Graft and
Corrupt Practices Act;  
x x x                      x x x                x
x x”
 At any rate, this Court has recognized
the following as sufficient standards: “public
interest”, “justice and equity”, “public convenience
and welfare” and “simplicity, economy and
welfare”.  In this case, the declared policy of
optimization of the revenue-generation capability
and collection of the BIR and the BOC is infused
with public interest.[33]
           We could not but deduce that the completeness test and the
sufficient standard test were fully satisfied by R.A. No. 9335, as evident
from the aforementioned Sections 2, 4 and 7 thereof. Moreover, Section
5[34] of R.A. No. 9335 also provides for the incentives due to District
Collection Offices. While it is apparent that the last paragraph of Section
5 provides that “[t]he allocation, distribution and release of the district
of reward shall likewise be prescribed by the rules and regulations of the
Revenue Performance and Evaluation Board,” Section 7 (a)[35] of R.A. No.
9335 clearly mandates and sets the parameters for the Board by
providing that such rules and guidelines for the allocation, distribution
and release of the fund shall be in accordance with Sections 4 and 5 of
16
R.A. No. 9335. In sum, the Court finds that R.A. No. 9335, read and
appreciated in its entirety, is complete in all its essential terms and
conditions, and that it contains sufficient standards as to negate
BOCEA’s supposition of undue delegation of legislative power to the
Board.
          Similarly, we resolve the second issue in the negative.
          Equal protection simply provides that all persons or things similarly
situated should be treated in a similar manner, both as to rights
conferred and responsibilities imposed. The purpose of the equal
protection clause is to secure every person within a state’s jurisdiction
against intentional and arbitrary discrimination, whether occasioned by
the express terms of a statute or by its improper execution through the
state’s duly constituted authorities. In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may
not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective. [36]
          Thus, on the issue on equal protection of the laws, we held
in Abakada:
The equal protection clause recognizes a
valid classification, that is, a classification that has a
reasonable foundation or rational basis and not
arbitrary. With respect to RA [No.] 9335, its
expressed public policy is the optimization of the
revenue-generation capability and collection of the
BIR and the BOC. Since the subject of the law is the
revenue-generation capability and collection of the
BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the
said agencies. Moreover, the law concerns only the
BIR and the BOC because they have the common
distinct primary function of generating revenues for
the national government through the collection of
taxes, customs duties, fees and charges.
The BIR performs the following functions:
“Sec. 18. The Bureau of
Internal Revenue. — The Bureau of
Internal Revenue, which shall be headed
by and subject to the supervision and
control of the Commissioner of Internal
Revenue, who shall be appointed by the
President upon the recommendation of
the Secretary [of the DOF], shall have the
following functions:   which the State exercises one of its great inherent
 
(1) Assess and collect all
taxes, fees and charges and
account for all revenues collected;
(2) Exercise
delegated police powers for the
proper performance of its functions
and duties;
(3) Prevent and prosecute
tax evasions and all other illegal
economic activities;
(4) Exercise supervision
and control over its constituent and
subordinate units; and
(5) Perform such other
functions as may be provided by
law.
x x x                      x x x                x
x x”
 
On the other hand, the BOC has the
following functions:
 
“Sec. 23. The Bureau of
Customs. — The Bureau of Customs
which shall be headed and subject to the
management and control of the
Commissioner of Customs, who shall be
appointed by the President upon the
recommendation of the Secretary [of the
DOF] and hereinafter referred to as
Commissioner, shall have the following
functions:  
(1) Collect custom duties,
taxes and the corresponding fees,
charges and penalties;
(2) Account for all
customs revenues collected;
(3) Exercise police
authority for the enforcement of
tariff and customs laws;
(4) Prevent and suppress
smuggling, pilferage and all other
economic frauds within all ports of
entry;
(5) Supervise and control
exports, imports, foreign mails and
the clearance of vessels and
aircrafts in all ports of entry;
(6) Administer all legal
requirements that are appropriate;
(7) Prevent and prosecute
smuggling and other illegal activities
in all ports under its jurisdiction;
(8) Exercise supervision
and control over its constituent
units;   
(9) Perform such other
functions as may be provided by
law.
      x x x                x x x                x
x x”
            Both the BIR and the BOC are bureaus under
the DOF. They principally perform the special
function of being the instrumentalities through
functions — taxation. Indubitably, such substantial
distinction is germane and intimately related to the
purpose of the law. Hence, the classification and
treatment accorded to the BIR and the BOC under
duly RA [No.] 9335 fully satisfy the demands of equal
protection.[37]
         As it was imperatively correlated to the issue on equal protection,
the issues on the security of tenure of affected BIR and BOC officials and
employees and their entitlement to due process were also settled
in Abakada:
 
Clearly, RA [No.] 9335 in no way violates
the security of tenure of officials and employees of
the BIR and the BOC. The guarantee of security of
tenure only means that an employee cannot be
dismissed from the service for causes other than
those provided by law and only after due process is
accorded the employee. In the case of RA [No.]
9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of
the target by at least 7.5%) with due consideration
of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency
and incompetence in the performance of official
17
 duties, a ground for disciplinary action under civil democratic processes are still followed and the constitutional rights of
service laws. The action for removal is also subject the concerned employee are amply protected.
to civil service laws, rules and regulations and           A final note.
compliance with substantive and procedural due           We find that BOCEA’s petition is replete with allegations of defects
process.[38] and anomalies in allocation, distribution and receipt of rewards. While
          In addition, the essence of due process is simply an opportunity to BOCEA intimates that it intends to curb graft and corruption in the BOC
be heard, or as applied to administrative proceedings, a fair and in particular and in the government in general which is nothing but
reasonable opportunity to explain one’s side. [39] BOCEA’s apprehension noble, these intentions do not actually pertain to the constitutionality of
of deprivation of due process finds its answer in Section 7 (b) and (c) of R.A. No. 9335 and its IRR, but rather in the faithful implementation
R.A. No. 9335.[40] The concerned BIR or BOC official or employee is not thereof.   R.A. No. 9335 itself does not tolerate these pernicious acts of
simply given a target revenue collection and capriciously left without any graft and corruption.[48] As the Court is not a trier of facts, the
quarter. R.A. No. 9335 and its IRR clearly give due consideration to all investigation on the veracity of, and the proper action on these
relevant factors[41] that may affect the level of collection.  In the same anomalies are in the hands of the Executive branch. Correlatively, the
manner, exemptions[42] were set, contravening BOCEA’s claim that its wisdom for the enactment of this law remains within the domain of the
members may be removed for unattained target collection even due to Legislative branch. We merely interpret the law as it is. The Court has no
causes which are beyond their control. Moreover, an employee’s right to discretion to give statutes a meaning detached from the manifest
be heard is not at all prevented and his right to appeal is not deprived of intendment and language thereof.[49]  Just like any other law, R.A. No.
him.[43] In fine, a BIR or BOC official or employee in this case cannot be 9335 has in its favor the presumption of constitutionality, and to justify
arbitrarily removed from the service without according him his its nullification, there must be a clear and unequivocal breach of the
constitutional right to due process. No less than R.A. No. 9335 Constitution and not one that is doubtful, speculative, or argumentative.
[50]
in accordance with the 1987 Constitution guarantees this.  We have so declared in Abakada, and we now reiterate that R.A. No.
          We have spoken, and these issues were finally laid to rest. Now, 9335 and its IRR are constitutional.
the Court proceeds to resolve the last, but new issue raised by BOCEA,           WHEREFORE, the present petition for certiorari and prohibition
that is, whether R.A. No. 9335 is a bill of attainder proscribed under with prayer for injunctive relief/s is DISMISSED.
Section 22,[44] Article III of the 1987 Constitution.           No costs.
          On this score, we hold that R.A. No. 9335 is not a bill of           SO ORDERED.
attainder.  A bill of attainder is a legislative act which inflicts punishment
on individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain individuals or
a group of individuals, the imposition of a punishment, penal or
otherwise, and the lack of judicial trial.[45]
 
          In his Concurring Opinion in Tuason v. Register of
Deeds,  Caloocan  City,[46] Justice Florentino P. Feliciano traces the roots
of a Bill of Attainder, to wit:
            Bills of attainder are an ancient instrument
of tyranny. In England a few centuries back,
Parliament would at times enact bills or statutes
which declared certain persons attainted and their
blood corrupted so that it lost all heritable quality
(Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]).
In more modern terms, a bill of attainder is
essentially a usurpation of judicial power by a
legislative body. It envisages and effects the
imposition of a penalty — the deprivation of life or
liberty or property — not by the ordinary processes
of judicial trial, but by legislative fiat. While cast in
the form of special legislation, a bill of attainder
(or bill of pains and penalties, if it prescribed a
penalty other than death) is in intent and effect a
penal judgment visited upon an identified person
or group of persons (and not upon the general
community) without a prior charge or demand,
without notice and hearing, without an
opportunity to defend, without any of the civilized
forms and safeguards of the judicial process as we
know it (People v. Ferrer, 48 SCRA 382
[1972]; Cummings and Missouri, 4 Wall. 277, 18 L.
Ed. 356 [1867];U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. THE CITY OF DAVAO, CITY             G.R. No.   127383
1252 [1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. TREASURER AND THE                           
2d. 484 [1965]. Such is the archetypal bill of CITY ASSESSOR OF DAVAO            Present:
attainder wielded as a means of legislative CITY,
oppression. x x x[47]                     Petitioners,                       PUNO, J.,
          R.A. No. 9335 does not possess the elements of a bill of attainder.                                      
It does not seek to inflict punishment without a judicial trial. R.A. No. Chairman,
9335 merely lays down the grounds for the termination of a BIR or BOC                                                            AUSTRIA-MARTINEZ,
official or employee and provides for the consequences thereof. The                                                            CALLEJO, SR.,
18
              -  versus  -                            TINGA,  and
           CHICO-
NAZARIO, JJ.
       
THE REGIONAL TRIAL                     Promulgated:
COURT, BRANCH XII, DAVAO        noted that the earlier law had prescribed two conditions in order that
CITY AND THE GOVERNMENT                   August 18, 2005
SERVICE INSURANCE SYSTEM
(GSIS),
                    Respondents.
x-------------------------------------------------------------------x
 
 
DECISION
 
TINGA, J.:
 
        A Davao City Regional Trial Court (RTC) upheld the tax-exempt
status of the Government Service Insurance System (GSIS) for the years
1992 to 1994 in contravention of the mandate under the Local
Government Code of 1992,[1] the precedent set by this Court in Mactan-
Cebu International Airport Authority v. Hon. Marcos, [2] and the public
policy on local autonomy enshrined in the Constitution. [3]
 
        The matter was elevated to this Court directly from the trial court
on a pure question of law.[4] The facts are uncontroverted.
 
On 8 April 1994, the GSIS Davao City branch office received a
Notice of Public Auction scheduling the public bidding of GSIS properties
located in Matina and Ulas, Davao City for non-payment of realty taxes
for the years 1992 to 1994 totaling Two Hundred Ninety Five Thousand
Seven Hundred Twenty One Pesos and Sixty One Centavos
(P295,721.61).[5] The auction was subsequently reset by virtue of a
deadline extension allowed by Davao City for the payment of delinquent
real property taxes.[6]  as the respondents Register of Deeds from
 
 
 
 
On 28 July 1994, the GSIS received Warrants of Levy and
Notices of Levy on three parcels of land owned by the GSIS.   Another
Notice of Public Auction was received by the GSIS on 29 August 1994,
setting the date of auction sale for 20 September 1994.
 
        On 13 September 1994, the GSIS filed a Petition for Certiorari,
Prohibition, Mandamus And/Or Declaratory Relief with the RTC of Davao
City. It also sought the issuance of a temporary restraining order. The
case was raffled to Branch 12, presided by Judge Maximo Magno Libre.
On 13 September 1994, the RTC issued a temporary restraining order for
a period of twenty (20) days, [7] effectively enjoining the auction sale
scheduled seven days later. Following exchange of arguments, the RTC
issued an Order dated 3 April 1995 issuing a writ of preliminary
injunction effective for the duration of the suit. [8]
 
        At the pre-trial, it was agreed that the sole issue for resolution was
purely a question of law, that is, whether Sections 234 and 534 of the
Local Government Code, which have withdrawn real property tax
exemptions of government owned and controlled corporations (GOCCs),
have also withdrawn from the GSIS its right to be exempted from
payment of the realty taxes sought to be levied by Davao City. [9] The
parties submitted their respective memoranda.
 
        On 28 May 1996, the RTC rendered the Decision[10] now assailed
before this Court. It concluded that notwithstanding the enactment of
the Local Government Code, the GSIS retained its exemption from all
taxes, including real estate taxes.  The RTC cited Section 33 of
Presidential Decree (P.D.) No. 1146, the Revised Government Service
Insurance Act of 1977, as amended by P. D. No. 1981, which mandated
such exemption.
The RTC conceded that the tax exempting statute, P.D. No.
1146, was enacted prior to the Local Government Code.  However, it
the tax exemption provided therein could be withdrawn by future
enactments, namely: (1) that Section 33 be expressly and categorically
repealed by law; and (2) that a provision be enacted to substitute the
declared policy of exemption from  any  and  all  taxes  as  an  essential 
factor  for the solvency  of  the   GSIS   fund.[11]  The RTC concluded that
both conditions had not been satisfied by the Local Government Code.
The RTC likewise accorded weight to Legal Opinion No. 165 of the
Secretary of Justice dated 16 December 1996 concluding that Section 33
was not repealed by the Local Government Code, and a memorandum
emanating from the Office of the President dated 14 February 1995
expressing the same opinion.[12]
 
        The dispositive portion of the assailed Decision reads:
 
          Now then, in light of the foregoing observation, the
court perceives, that the cause of action asseverated by
petitioner in its petition has been well established by law
and jurisprudence, and therefore the following relief
should be granted:
 
a)      The tax exemption privilege of petitioner
should be upheld and continued and that the
warrants of levy and notices of levy issued by
the respondent Treasurer is hereby voided
and declared of no effect;
b)      Let a writ of prohibition be issued restraining
the City Treasurer from proceeding with the
auction sale of the subject properties, as well
annotating the warrants/notices of levy on
the certificate of titles of petitioners real
properties subject of this suit; and
c)       Compelling the City Assessor of Davao City
to include the properties of petitioner in the
list of properties exempt from payment of
realty tax and if the warrants and levies
issued by the City Treasurer had been
annotated in the memorandum of
encumbrance on the certificates of title of
petitioner’s properties, to cancel such
annotation so that the certificates of titles of
petitioners will be free from such liens and
encumbrances.
 
SO ORDERED.[13]
 
 
        Petitioners’ Motion for Reconsideration was denied by the RTC in
an Order dated 30 October 1996, hence the present petition.
 
Petitioners argue that the exemption granted in Section 33 of
P.D. No. 1146, as amended, was effectively withdrawn upon the
enactment of the Local Government Code, particularly Sections 193 and
294 thereof. These provisions made the GSIS, along with all other
GOCCs, subject to realty taxes.  Petitioners point out that under Section
534(f) of the Local Government Code, even special laws, such as PD No.
1146, which are inconsistent with the Local Government Code, are
repealed or modified accordingly.
 
19
        On the other hand, GSIS contends, as the RTC held, that the
requisites for repeal are laid down in Section 33 of P.D. No. 1146, as
amended, namely that it be done expressly and categorically by law, and
that a provision be enacted to substitute the declared policy of
exemption from  taxes  as  an  essential factor for the solvency of the
GSIS fund. It stresses that it had been exempt from taxation as far back
as 1936, when its original charter was enacted through Commonwealth
Act No. 186.[14] It asserts further that this Court had previously
recognized the “extraordinary exemption” of GSIS in Testate Estate of
Concordia T. Lim v. City of Manila, [15] and such exemption has similarly
been affirmed by the Secretary of Justice and the Office of the President
in the aforementioned issuances also cited by the RTC. [16]
 
        GSIS likewise notes that had it been the intention of the legislature
to repeal Section 33 of P.D. No. 1146 through the Local Government
Code, said law would have included the appropriate retraction in its
repealing clause found in Section 534(f). However, said section,
according to the GSIS, partakes the nature of a general repealing
provision which is accorded less weight in light of the rule that implied
repeals are not favored. Consequently with its position that it remains
exempt from realty taxation, the GSIS argues that the Notices of
Assessment, Warrants and Notices of Levy, Notices of Public Auction
Sale and the Annotations of the Notice of Levy are void ab initio.
 
        A review of the relevant statutory provisions is in order.
 
Presidential Decree No. 1146 was enacted in 1977 by
President Marcos in the exercise of his legislative powers. Section 33, as
originally enacted, read:
 
Sec. 33. Exemption from tax, Legal
Process and Lien.- It is hereby declared to be the
policy  of the State that the actuarial solvency of
the funds of the System shall be preserved and
maintained at all times and that the contribution
rates necessary to sustain the benefits under this
Act shall be kept as low as possible in order not to
burden the members of the system and/or their
employees. . . .  Accordingly, notwithstanding any
laws to the contrary, the System, its assets,
revenues including the accruals thereto, and
benefits paid, shall be exempt from all taxes. 
These exemptions shall continue unless expressly
and specifically revoked and any assessment
against the System as of the approval of this Act
are hereby considered paid.
 
        
        As it stood then, Section 33 merely provided a general rule
exempting the GSIS from all taxes. However, Section 33 of P.D. No. 1146
was amended in 1985 by President Marcos, again in the exercise of his
legislative powers, through P.D. No. 1981. It was through this latter
decree that a second paragraph was added to Section 33 delineating the
requisites for repeal of the tax exemption enjoyed by the GSIS by
incorporating the following:
 
 
 
                   …
 
 
Moreover, these exemptions shall
not be affected by subsequent laws to the
contrary, such as the provisions of Presidential
Decree No. 1931 and other similar laws that
have been or will be enacted, unless this
section is expressly and categorically repealed
by law and a provision is enacted to substitute
the declared policy of exemption from any and
all taxes as an essential factor for the solvency
of the fund.[17]
 
 
        It bears noting though, and it is perhaps key to understanding the
necessity of the addendum provided under P.D. No. 1981, that a
presidential decree enacted a year earlier, P.D. No. 1931, effectively
withdrew all tax exemption privileges granted to GOCCs. [18] In fact, P.D.
No. 1931 was specifically named in the afore-quoted addendum as
among those laws which, despite passage, would not affect the tax
exempt status of GSIS.  Section 1 of P.D. No. 1931 states:
 
Sec. 1. The provisions of special or
general law to the contrary notwithstanding,
all exemptions from the payment of duties,
taxes, fees, imposts and other charges
heretofore granted in favor of government-
owned or controlled corporations including
their subsidiaries, are hereby withdrawn.
There is no doubt that the GSIS which was established way
back in 1937 is a GOCC, a fact that GSIS itself admits in its petition for
certiorari before the RTC. [19] It thus clear that Section 1 of P.D. No. 1931
expressly withdrew those exemptions granted to the GSIS.  Presidential
Decree No. 1931 did allow the exemption to be restored in special cases
through an application for restoration with the Secretary of Finance, but
otherwise, the exemptions granted to the GSIS prior to the enactment of
P.D. No. 1931 were withdrawn.
 
Notably, P.D. No. 1931 was also an exercise of legislative
powers then accorded to President Marcos by virtue of Amendment No.
6 to the 1973 Constitution. Whether he was aware of the effect of P.D.
No. 1931 on the GSIS’s tax-exempt status or the ramifications of the
decree thereon is unknown; but apparently, he immediately
reconsidered the withdrawal of the exemptions on the GSIS. Thus, P.D.
No. 1981 was enacted, expressly stating that the tax-exempt status of the
GSIS under Section 33 of P.D. No. 1146 remained in place,
notwithstanding the passage of P.D. No. 1931. 
 
However, P.D. No. 1981 did not stop there, serving  merely as it
should to restore the previous exemptions on the GSIS. It also attempted
to proscribe future attempts to alter the tax-exempt status of the GSIS by
imposing unorthodox conditions for its future repeal. Thus, as intimated
earlier, a second paragraph was added to Section 33, containing the
restrictions relied upon by the RTC and presently invoked by the GSIS
before this Court.
 
These laws have to be weighed against the Local Government
Code of 1992, a landmark law which implemented the constitutional
aspirations for a more extensive breadth of local autonomy.  The Court,
in Mactan, was asked to consider the effect of the Local Government
Code on the taxability by local governments of GOCCs such as the
Mactan Cebu International Airport Authority (MCIAA). Particularly,
MCIAA invoked Section 133(o) of the Local Government Code as the basis
for its claimed exemption, the provision reading:
 
SECTION 133. Common Limitations on the Taxing Powers
of Local Government Units.— Unless otherwise provided
herein, the exercise of the taxing powers of provinces,
cities, municipalities, and barangays shall not extend to
the levy of the following:
 
20
 ....
 
(o)   Taxes, fees or charges of any
kind on the National
Government, its agencies and
instrumentalities and local
government units.
 
However, the Court, in ruling MCIAA non-exempt from realty
taxes, considered that Section 133 qualified the exemption of the
National Government, its agencies and instrumentalities from local
taxation with the phrase “unless otherwise provided herein.” The Court
then considered the other relevant provisions of the Local Government
Code, particularly the following:
 
SECTION 193. Withdrawal of Tax Exemption Privileges.  –
Unless otherwise provided in this Code, tax exemption
or incentives granted to, or enjoyed by all persons,
whether natural or juridical, including government-
owned and controlled corporations, except local water
districts, cooperatives duly registered under R.A. No.
6938, non-stock and non-profit hospitals and
educational institutions, are hereby withdrawn upon
the effectivity of this Code.
 
SECTION 232. Power to Levy Real Property Tax. –  A
province or city or a municipality within the
Metropolitan Manila area may levy an annual ad
valorem tax on real property such as land, building,
machinery, and other improvements not hereafter
specifically exempted.
 
SECTION 234. Exemptions from Real Property Tax. --   The
following are exempted from payment of the real
property tax:
 
(a)              Real property owned by the Republic of the
Philippines or any of its political subdivisions
except when the beneficial use thereof has
been granted, for consideration or otherwise,
to a taxable person;
(b)             Charitable institutions, churches, parsonages
or convents appurtenant thereto, mosques,
non-profit or religious cemeteries and all
lands, buildings, and improvements actually,
directly, and exclusively used for religious
charitable or educational purposes;
(c)              All machineries and equipment that are
actually, directly and exclusively used by local
water districts and government-owned and
controlled corporations engaged in the
distribution of water and/or generation and
transmission of electric power;
(d)             All real property owned by duly registered
cooperatives as provided for under R.A. No.
6938; and
(e)              Machinery and equipment used for pollution
control and environmental protection.
 
Except as provided herein, any exemption
from payment of real property tax previously granted
to, or presently enjoyed by, all persons, whether
natural or juridical, including all government-owned or
controlled corporations are hereby withdrawn upon the
effectivity of this Code. (Emphasis supplied.)
Evidently, Section 133 was not intended to be so absolute a
prohibition on the power of LGUs to tax the National Government, its
agencies and instrumentalities, as evidenced by these cited provisions
which “otherwise provided.” But what was the extent of the limitation
under Section 133? This is how the Court, in a discussion of far-reaching
consequence, defined the parameters in Mactan:
 
The foregoing sections of the LGC
speak of: (a) the  limitations  on  the  taxing 
powers  of   local government  units   and  
the   exceptions   to  such limitations; and (b)
the rule on tax exemptions and the exceptions
thereto. The use of exceptions or provisos in
these sections, as shown by the following
clauses:
 
(1) "unless otherwise provided
herein" in the opening paragraph of
Section 133;
(2) "Unless otherwise provided in
this Code" in Section 193;
(3) "not hereafter specifically
exempted" in Section 232; and
(4) "Except as provided herein" in
the last paragraph of Section 234
 
initially hampers a ready understanding of the
sections. Note, too, that the aforementioned
clause in Section 133 seems to be inaccurately
worded. Instead of the clause "unless
otherwise provided herein," with the "herein"
to mean, of course, the section, it should have
used the clause "unless otherwise provided in
this Code." The former results in absurdity
since the section itself enumerates what are
beyond the taxing powers of local government
units and, where exceptions were intended,
the exceptions are explicitly indicated in the
next. For instance, in item (a) which excepts
income taxes "when levied on banks and other
financial institutions"; item (d) which excepts
"wharfage on wharves constructed and
maintained by the local government unit
concerned"; and item (1) which excepts taxes,
fees and charges for the registration and
issuance of licenses or permits for the driving
of "tricycles." It may also be observed that
within the body itself of the section, there are
exceptions which can be found only in other
parts of the LGC, but the section
interchangeably uses therein the clause,
"except as otherwise provided herein" as in
items (c) and (i), or the clause "except as
provided in this Code" in item (j). These clauses
would be obviously unnecessary or mere
surplusages if the opening clause of the section
were "Unless otherwise provided in this Code"
instead   of   "Unless  otherwise provided
herein." In
any event, even if the latter is used, since
under Section 232 local government units
have the power to levy real property tax,
except those exempted therefrom under
Section 234, then Section 232 must be
deemed to qualify Section 133.
21
 Thus, reading together Sections
133, 232, and 234 of the LGC, we conclude
that as a general rule, as laid down in Section
133, the taxing powers of local government
units cannot extend to the levy of,inter alia,
"taxes, fees and charges of any kind on the
National Government, its agencies and
instrumentalities, and local government
units"; however, pursuant to Section 232,
provinces, cities, and municipalities in the
Metropolitan Manila Area may impose the
real property tax except on, inter alia, "real
property owned by the Republic of the
Philippines or any of its political subdivisions
except when the beneficial use thereof has
been granted, for consideration or otherwise,
to a taxable person," as provided in item (a)
of the first paragraph of Section 234.
 
As to tax exemptions or incentives
granted to or presently enjoyed by natural or
judicial persons, including government-owned
and controlled corporations, Section 193 of
the LGC prescribes the general rule, viz., they
are withdrawn upon the effectivity of the LGC,
except those granted to local water districts,
cooperatives duly registered under R.A. No.
6938, non-stock and non-profit hospitals and
educational institutions, and unless otherwise
provided in the LGC. The latter proviso could
refer to Section 234 which enumerates the
properties exempt from real property tax. But
the last paragraph of Section 234 further
qualifies the retention of the exemption
insofar as real property taxes are concerned
by limiting the retention only to those
enumerated therein; all others not included in
the enumeration lost the privilege upon the
effectivity of the LGC. Moreover, even as to
real property owned by the Republic of the
Philippines or any of its political subdivisions
covered by item (a) of the first paragraph of
Section 234, the exemption is withdrawn if the
beneficial use of such property has been
granted to a taxable person for consideration
or otherwise.
Since the last paragraph of Section
234 unequivocally withdrew, upon the
effectivity of the LGC, exemptions from
payment of real property taxes granted to
natural or juridical persons, including
government-owned or controlled
corporations, except as provided in the said
section, and the petitioner is, undoubtedly, a
government-owned corporation, it necessarily
follows that its exemption from such tax
granted it in Section 14 of its Charter, R.A. No.
6958, has been withdrawn. Any claim to the
contrary can only be justified if the petitioner
can seek refuge under any of the exceptions
provided in Section 234, but not under Section
133, as it now asserts, since, as shown above,
the said section is qualified by Sections 232
and 234.[20] (Emphasis supplied.)
 
 
This Court, in Mactan, acknowledged that under Section 133,
instrumentalities were generally exempt from all forms of local
government taxation, unless otherwise provided in the Code. On the
other hand, Section 232 “otherwise provides” insofar as it allowed local
government units to levy an ad valorem real property tax, irrespective of
who owned the property.  At the same time, the imposition of real
property taxes under Section 232 is in turn qualified by the phrase “not
hereinafter specifically exempted.” The exemptions from real property
taxes are enumerated in Section 234, which specifically states that only
real properties owned “by the Republic of the Philippines or any of its
political subdivisions” are exempted from the payment of the tax.
Clearly, instrumentalities or GOCCs do not fall within the exceptions
under Section 234.
 
        Worth reckoning, however, is an essential difference between the
situation of the MCIAA (and most other GOCCs, for that matter) and that
of the GSIS. Unlike most other GOCCs, there is a statutory provision—
Section 33 of P.D. No. 1146, as amended—which imposes conditions on
the subsequent withdrawal of the GSIS’s tax exemptions. The RTC
justified the affirmance of the tax exemptions based on the non-
compliance by the Local Government Code with these conditionalities,
and not by reason of a general proposition that GOCCs or
instrumentalities remain exempt from local government taxation.
 
 
 
 
        Absent Section 33 of P.D. No. 1146, as amended, there would be no
impediment in squarely applying the express provisions of Sections 193,
232 and 234 of the Local Government Code, as the Court did
in Mactan and recently in Philippine Rural Electric Cooperatives
Association, Inc. et al. v. Secretary of Interior And Local Government, et
al.  [21]  and in ruling that the tax exemptions of GSIS were withdrawn by
the Code. Thus, the crucial proposition is whether the GSIS tax
exemptions can be deemed as withdrawn by the Local Government Code
notwithstanding Section 33 of P.D. No. 1146 as amended.
 
        Concededly, it does not appear that at the very least, the second
conditionality of Section 33 has been met. No  provision has been
enacted “to substitute the declared policy of exemption from any and all
taxes as an essential factor for the solvency of the fund.” [22] Yet the Court
is averse to employing this framework, in the first place as utilized by the
RTC, for we recognize a fundamental flaw in Section 33, particularly the
amendatory second paragraph introduced by P.D. No. 1981.
 
 
        The second paragraph of Section 33 of P.D. No. 1146, as amended,
effectively imposes restrictions on the competency of the Congress to
enact future legislation on the taxability of the GSIS. This places an undue
restraint on the plenary power of the legislature to amend or repeal
laws, especially considering that it is a lawmaker’s act that imposes such
burden. Only the Constitution may operate to preclude or place
restrictions on the amendment or repeal of laws. Constitutional dicta is
of higher order than legislative statutes, and the latter should always
yield to the former in cases of irreconcilable conflict.
 
        It is a basic precept that among the implied substantive limitations
on the legislative powers is the prohibition against the passage of
irrepealable laws.[23]  Irrepealable laws deprive succeeding legislatures of
the fundamental best senses carte blanche  in crafting laws appropriate
to the operative milieu. Their allowance promotes an unhealthy stasis in
the legislative front and dissuades dynamic democratic impetus that may
be responsive to the times. As Senior Associate Justice Reynato S. Puno
once observed, “[t]o be sure, there are no irrepealable laws just as there
are no irrepealable Constitutions. Change is the predicate of progress and
we should not fear change.”[24]
22

Moreover, it would be noxious anathema to democratic
principles for a legislative body to have the ability to bind the actions of
future legislative body, considering that both assemblies are regarded
with equal footing, exercising as they do the same plenary powers.
Perpetual infallibility is not one of the attributes desired in a legislative
body, and a legislature which attempts to forestall future amendments or
repeals of its enactments labors under delusions of omniscience.
        It might be argued that Section 33 of P.D. No. 1146, as amended,
does not preclude the repeal of the tax-exempt status of GSIS, but
merely imposes conditions for such to validly occur.  Yet these
conditions, if honored, have the precise effect of limiting the powers of
Congress.  Thus, the same rationale for prohibiting irrepealable laws
applies in prohibiting restraints on future amendatory laws. President
Marcos, who exercised his legislative powers in amending P.D. No. 1146,
could not have demanded obeisance from future legislators by imposing
restrictions on their ability to legislate amendments or repeals. The
concerns that may have militated his enactment of these restrictions
need not necessarily be shared by subsequent Congresses.    (a) Any provision on a power of a local
 
        We do not mean to trivialize the need to ensure the solvency of the
GSIS fund, a concern that has seen legislative expression, even with the
most recently enacted Government Service Insurance System Act of
1997.[25]  Yet at the same time, we recognize that Congress has the
putative authority, through valid legislation, to diminish such fund, or
even abolish the GSIS itself if it so desires. The GSIS may provide vital
services and security to employees of the civil service, yet it is not a
sacred cow that is beyond abolition by Congress if, for example, more
innovative methods are devised to ensure stable pension funds for
government employees. If Congress has the inherent power to abrogate
the GSIS itself, then it necessarily has the ability to inflict less detrimental
burdens, such as abolishing its tax-exempt status. If there could be legal
authority proscribing the Congress from enacting such legislation, such
should be sourced from the Constitution itself, and not from antecedent
statutes which were themselves enacted by legislative power.
         The Court’s position is aligned with entrenched norms of statutory
construction. In Duarte v. Dade,[26] the Court cited with approval Lewis’
Southerland on Statutory Construction, which states:
 
A state legislature has a plenary law-making
power over all subjects, whether pertaining to persons
or things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless prohibited
expressly or by implication by the federal constitution
or limited or restrained by its own. It cannot bind itself
or its successors by enacting irrepealable laws except
when so restrained. Every legislative body may modify
or abolish the acts passed by itself or its predecessors.
This power of repeal may be exercised at the same
session at which the original act was passed; and even
while a bill is in its progress and before it becomes a
law. This legislature cannot bind a future legislature
to a particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing
statutes. (Emphasis supplied.)[27]
 
 
        The citation is particularly apropos to our present task, since the
question for resolution is primarily one of statutory construction, i.e.,
whether or not Section 33 of P.D. No. 1146 has been repealed by the
Local Government Code. It is evident that we cannot render effective  thus, may be collected by the City of Davao.
the  amendatory second paragraph of Section 33 as the RTC did, for by
doing so, we would be giving sanction to a disingenuous means
employed through legislative power to bind subsequent legislators to a
particular mode of repeal. 
Thus, the two conditionalities of Section 33 cannot bear
relevance on whether the Local Government Code removed the tax-
exempt status of the GSIS.  The express withdrawal of all tax exemptions
accorded to all persons, natural or juridical, as stated in Section 193 of
the Local Government Code, applies without impediment to the present
case. Such position is bolstered by the other cited provisions of the Local
Government Code, and by the Mactan ruling.
        There are other reasons that guide us to construe the Local
Government Code in favor of the City ofDavao’s position. Section 5 of the
Local Government Code provides the guidelines on how to construe the
Code’s provisions in cases of doubt, and they are self-explanatory, thus:
 
Section 5. Rules of Interpretation. – In the
interpretation of the provisions of this Code, the
following rules shall apply:
 
 
government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon shall
be resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be
interpreted in favor of the local government unit
concerned;
 
(b) In case of doubt, any tax ordinance or revenue
measure shall be construed strictly against the local
government unit enacting it, and liberally in favor of the
taxpayer. Any tax exemption, incentive or relief granted
by any local government unit pursuant to the provisions
of this Code shall be construed strictly against the
person claiming it; (Emphasis supplied.)
 
 
Also worthy of note is that the Constitution itself promotes the
principles of local autonomy as embodied in the Local Government Code.
The State is mandated to ensure the autonomy of local governments,
[28]
 and local governments are empowered to levy taxes, fees and charges
that accrue exclusively to them, subject to congressional guidelines and
limitations.[29] The principle of local autonomy is no mere passing
dalliance but a constitutionally enshrined precept that deserves respect
and appropriate enforcement by this Court.
We are aware that this stance runs contrary to that which was
adopted by the Secretary of Justice in his Opinion dated 22 July 1993, as
well as the memorandum from the Office of the President dated 14
February 1995, expressing the same opinion. However, statutory
interpretations of these executive bodies do not hold decisive sway upon
the judiciary but are merely persuasive. These issuances cannot derogate
from the binding precept that one legislature cannot enact irrepealable
legislation or limit or restrict its own power or the power of its successors
as to the repeal of statutes. [30]  The act of one legislature is not binding
upon and does not tie the hands of future legislatures. [31]
The GSIS’s tax-exempt status, in sum, was withdrawn in 1992
by the Local Government Code but restored  by  the  Government 
Service  Insurance System
Act of 1997,  the  operative  provision  of  which is Section 39.[32]  The
subject real property taxes for the years 1992 to 1994 were assessed
against GSIS while the Local Government Code provisions prevailed and,
 
 
 
 
23
 WHEREFORE, premises considered, the Petition for Review  is
hereby GRANTED.  The appealedDecision of
the Regional Trial Court of Davao City, Branch 12 is REVERSED and SET
ASIDE. 
 
Costs de oficio.
 
SO ORDERED.

Republic of the Philippines
Supreme Court
Manila
 
EN BANC
 
 
DATU MICHAEL ABAS KIDA,      G.R. No. 1
in his personal capacity, and in representation of  
MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS      Present:
ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN  
24
ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI,        CORONA,    
MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE        CARPIO,    
ABDIL, and BASSAM ALUH SAUPI,        VELASCO,                      -
JR., versus -  
Petitioners,             LEONARDO-DE  CASTRO,  
         BRION,    
         PERALTA, COMMISSION  ON ELECTIONS and THE OFFICE OF THE  
                 - versus -        BERSAMIN,PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N.  
         DEL OCHOA, JR.,  
         ABAD,                                      Respondents.  
SENATE OF THE PHILIPPINES, represented by its President JUAN        VILLARAMA, x----------------------------------------------x
JR.,  
PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER        PEREZ,    
FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its        MENDOZA,LUIS “BAROK” BIRAOGO,  
Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office        SERENO,                                      Petitioner,  
of the President Executive Secretary, FLORENCIO ABAD, JR.,        REYES, and   
Secretary of Budget, and ROBERTO TAN, Treasurer of the        PERLAS-BERNABE,
   
Philippines,                        - versus -  
Respondents.       Promulgated:   
x----------------------------------------------x      
BASARI D. MAPUPUNO,       October 18,THE  COMMISSION
2011 ON ELECTIONS and EXECUTIVE SECRETARY  
                               Petitioner,   PAQUITO N. OCHOA, JR.,  
                                        Respondents.  
    x----------------------------------------------x  
                  - versus -      
    JACINTO V. PARAS,  
                                        Petitioner,              G.R. No
SIXTO BRILLANTES, in his capacity as Chairman of the                       
Commission on Elections, FLORENCIO ABAD, JR. in his capacity      
as Secretary of the Department of Budget and Management,                        - versus -  
PACQUITO OCHOA, JR., in his capacity as Executive Secretary,      
JUAN PONCE ENRILE, in his capacity as Senate President, and         G.R. No. 196305
   
FELICIANO BELMONTE, in his capacity as Speaker of the House   EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the  
of Representatives,   COMMISSION ON ELECTIONS,  
                                     Respondents.                                      Respondents.  
x----------------------------------------------x   x--------------------------------------------x  
       
REP. EDCEL C. LAGMAN,   MINORITY RIGHTS FORUM, PHILIPPINES, INC.,  
                                    Petitioner,                            Respondents-Intervenor.  
       
     
                  - versus -    
                 G.R. N
     
PAQUITO N. OCHOA, JR., in his capacity as the Executive    
Secretary, and the COMMISSION ON ELECTIONS,    
                                   Respondents.    
x----------------------------------------------x    
     
ALMARIM CENTI TILLAH, DATU    
CASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO    
LAKAS NG BAYAN (PDP-LABAN),    
                                    Petitioners,    
     
           G.R. No. 197221  
                     - versus -    
                G.R. N
     
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO    
BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity    
as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his    x------------------------------------------------------------------------------------x
capacity as Secretary of the Department of Budget and    
Management, and HON. ROBERTO B. TAN, in his capacity as    
Treasurer of the Philippines,   DECISION
                                     Respondents.            
x----------------------------------------------x   BRION, J.:
     
ATTY. ROMULO B. MACALINTAL,    
                                     Petitioner,             G.R. No. 197280
25
 On June 30, 2011, Republic Act (RA) No. 10153, entitled “An
Act Providing for the Synchronization of the Elections in the Autonomous
Region in Muslim Mindanao (ARMM) with the National and Local
Elections and for Other Purposes” was enacted. The law reset the ARMM
elections from  the 8th  of August 2011, to the second Monday of May
2013 and every three (3) years thereafter, to coincide with the country’s
regular national and local elections. The law as well granted the
President the power to “appoint officers-in-charge (OICs) for the Office
of the Regional Governor, the Regional Vice-Governor, and the Members
of the Regional Legislative Assembly, who shall perform the functions
pertaining to the said offices until the officials duly elected in the May
2013 elections shall have qualified and assumed office.”
 
Even before its formal passage, the bills that became RA No.
10153 already spawned petitions against their validity; House Bill No.
4146 and Senate Bill No. 2756 were challenged in petitions filed with this
Court.  These petitions multiplied after RA No. 10153 was passed.  9140[1] - on June 22, 2001.  This law reset the first regular elections
 
Factual Antecedents
 
The State, through Sections 15 to 22, Article X of the 1987
Constitution, mandated the creation of autonomous regions in Muslim
Mindanao and the Cordilleras.  Section 15 states:
 
Section 15. There shall be created autonomous
regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing
common and distinctive historical and cultural
heritage, economic and social structures, and other
relevant characteristics within the framework of
this Constitution and the national sovereignty as
well as territorial integrity of the Republic of
the Philippines.    candidacies for the various regional offices to be elected.  But on June
 
Section 18 of the Article, on the other hand, directed Congress
to enact an organic act for these autonomous regions to concretely carry
into effect the granted autonomy.
 
Section 18. The Congress shall enact an organic act
for each autonomous region with the assistance
and participation of the regional consultative
commission composed of representatives
appointed by the President from a list of nominees
from multisectoral bodies. The organic act shall
define the basic structure of government for the
region consisting of the executive department and
legislative assembly, both of which shall be elective
and representative of the constituent political units.
The organic acts shall likewise provide for special
courts with personal, family and property law
jurisdiction consistent with the provisions of this
Constitution and national laws.
 
The creation of the autonomous region
shall be effective when approved by a majority of
the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the
autonomous region.
On August 1, 1989 or two years after the effectivity of the
1987 Constitution, Congress acted through Republic Act (RA) No. 6734
entitled “An Act Providing for an Organic Act for the Autonomous Region
in Muslim Mindanao.”  A plebiscite was held onNovember 6, 1990 as
required by Section 18(2), Article X of RA No. 6734, thus fully
establishing the Autonomous Region of Muslim Mindanao (ARMM).  The
initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and
Tawi-tawi.  RA No. 6734 scheduled the first regular elections for the
regional officials of the ARMM on a date not earlier than 60 days nor
later than 90 days after its ratification.
 
          RA No. 9054 (entitled “An Act to Strengthen and Expand the
Organic Act for the Autonomous Region in Muslim Mindanao, Amending
for the Purpose Republic Act No. 6734, entitled An Act Providing for the
Autonomous Region in Muslim Mindanao, as Amended”) was the next
legislative act passed.  This law provided further refinement in the basic
ARMM structure first defined in the original organic act, and reset the
regular elections for the ARMM regional officials to the second Monday
of September 2001.
 
Congress passed the next law affecting ARMM – RA No.
originally scheduled under RA No. 9054, to November 26, 2001.  It
likewise set the plebiscite to ratify RA No. 9054 to not later thanAugust
15, 2001.
 
RA No. 9054 was ratified in a plebiscite held on August 14,
2001. The province of Basilan and Marawi City voted to join ARMM on
the same date. 
 
RA No. 9333[2] was subsequently passed by Congress to reset
the ARMM regional elections to the 2 nd Monday of August 2005, and on
the same date every 3 years thereafter. Unlike RA No. 6734 and RA No.
9054, RA No. 9333 was not ratified in a plebiscite.
 
Pursuant to RA No. 9333, the next ARMM regional elections
should have been held on August 8, 2011. COMELEC had begun
preparations for these elections and had accepted certificates of
30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to
May 2013, to coincide with the regular national and local elections of
the country.
 
RA No. 10153 originated in the House of Representatives as
House Bill (HB) No. 4146, seeking the postponement of the ARMM
elections scheduled on August 8, 2011. On March 22, 2011, the House of
Representatives passed HB No. 4146, with one hundred ninety one (191)
Members voting in its favor.
 
After the Senate received HB No. 4146, it adopted its own
version, Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen
(13) Senators voted favorably for its passage. On June 7, 2011, the
House of Representative concurred with the Senate amendments, and
on June 30, 2011, the President signed RA No. 10153 into law.
 
As mentioned, the early challenge to RA No. 10153 came
through a petition filed with this Court – G.R. No. 196271[3] -assailing the
constitutionality of both HB No. 4146 and SB No. 2756, and challenging
the validity of  RA No. 9333 as well for non-compliance with the
constitutional plebiscite requirement. Thereafter, petitioner Basari
Mapupuno in G.R. No. 196305 filed another petition[4] also assailing the
validity of RA No. 9333.  
 
With the enactment into law of RA No. 10153, the COMELEC
stopped its preparations for the ARMM elections.  The law gave rise as
well to the filing of the following petitions against its constitutionality:
a)     Petition for Certiorari and Prohibition[5] filed by Rep. Edcel
Lagman as a member of the House of Representatives against
Paquito Ochoa, Jr. (in his capacity as the Executive Secretary)
and the COMELEC, docketed as G.R. No. 197221;
 
26
 b)    Petition for Mandamus and Prohibition[6] filed by Atty. Romulo           From the parties’ submissions, the following issues were
Macalintal as a taxpayer against the COMELEC, docketed recognized and argued by the parties in the oral arguments of August 9
asG.R. No. 197282; and 16, 2011:
   
c)     Petition for Certiorari and Mandamus, Injunction and I.       Whether the 1987 Constitution mandates the
Preliminary Injunction[7] filed by Louis “Barok” Biraogo against synchronization of elections
the COMELEC and Executive Secretary Paquito N. Ochoa, Jr.,  
docketed as G.R. No. 197392; and II.    Whether the passage of RA No. 10153 violates
  Section 26(2), Article VI of the 1987
d)    Petition for Certiorari and Mandamus[8] filed by Jacinto Paras as Constitution
a member of the House of Representatives against Executive  
Secretary Paquito Ochoa, Jr. and the COMELEC, docketed III. Whether the passage of RA No. 10153 requires a
as G.R. No. 197454. supermajority vote and plebiscite
   
Petitioners Alamarim Centi Tillah and Datu Casan Conding A.   Does the postponement of the
Cana as registered voters from the ARMM, with the Partido ARMM regular elections constitute
Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in an amendment to Section 7, Article
the ARMM regional elections scheduled for August 8, 2011), also filed a XVIII of RA No. 9054?
Petition for Prohibition and Mandamus [9] against the COMELEC,  
docketed as G.R. No. 197280, to assail the constitutionality of RA No. B.   Does the requirement of a
9140, RA No. 9333 and RA No. 10153. supermajority vote for amendments
  or revisions to RA No. 9054 violate
          Subsequently, Anak Mindanao Party-List, Minority Rights Forum Section 1 and Section 16(2), Article
Philippines, Inc. and Bangsamoro Solidarity Movement filed their VI of the 1987 Constitution and the
own  Motion for Leave to Admit their Motion for Intervention and corollary doctrine on irrepealable
Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the laws?
Court granted the motion. In the same Resolution, the Court ordered the  
consolidation of all the petitions relating to the constitutionality of HB C.   Does the requirement of a plebiscite
No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153. apply only in the creation of
  autonomous regions under
          Oral arguments were held on August 9, 2011 and August 16, paragraph 2, Section 18, Article X of
2011.  Thereafter, the parties were instructed to submit their respective the 1987 Constitution?
memoranda within twenty (20) days.  
  IV.            Whether RA No. 10153 violates the
          On September 13, 2011, the Court issued a temporary restraining autonomy granted to the ARMM
order enjoining the implementation of RA No. 10153 and ordering the  
incumbent elective officials of ARMM to continue to perform their V.   Whether the grant of the power to appoint OICs
functions should these cases not be decided by the end of their term violates:
on September 30, 2011.   
  A.   Section 15, Article X of the 1987 Constitution
The Arguments  
  B.   Section 16, Article X of the 1987 Constitution
          The petitioners assailing RA No. 9140, RA No. 9333 and RA No.  
10153 assert that these laws amend RA No. 9054 and thus, have to C.   Section 18, Article X of the 1987 Constitution
comply with the supermajority vote and plebiscite requirements  
prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to VI.            Whether the proposal to hold special elections is
become effective. constitutional and legal.
   
          The petitions assailing RA No. 10153 further maintain that it is We shall discuss these issues in the order they are presented
unconstitutional for its failure to comply with the three-reading above.
requirement of Section 26(2), Article VI of the Constitution.  Also cited as  
grounds are the alleged violations of the right of suffrage of the people  
of ARMM, as well as the failure to adhere to the “elective and OUR RULING
representative” character of the executive and legislative departments  
of the ARMM. Lastly, the petitioners challenged the grant to the We resolve to DISMISS the petitions and thereby UPHOLD the
President of the power to appoint OICs to undertake the functions of the constitutionality of RA No. 10153 in toto.
elective ARMM officials until the officials elected under the May 2013  
regular elections shall have assumed office. Corrolarily, they also argue I.  Synchronization as a recognized constitutional mandate
that the power of appointment also gave the President the power of  
control over the ARMM, in complete violation of Section 16, Article X of           The respondent Office of the Solicitor General (OSG) argues that
the Constitution. the Constitution mandates synchronization, and in support of this
  position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of
The Issues the 1987 Constitution, which provides:
   
  Section 1. The first elections of Members of the
Congress under this Constitution shall be held on
the second Monday of May, 1987.
27
 The first local elections shall be held on a date to be
determined by the President, which may be
simultaneous with the election of the Members of
the Congress. It shall include the election of all
Members of the city or municipal councils in the
Metropolitan Manila area.
Section 2. The Senators, Members of the House of
Representatives and the local officials first elected
under this Constitution shall serve
until  noonof  June 30, 1992.
Of the Senators elected in the election in 1992, the
first twelve obtaining the highest number of votes
shall serve for six year and the remaining twelve for
three years.
xxx
Section 5. The six-year term of the incumbent
President and Vice President elected in the
February 7, 1986 election is,  for purposes of
synchronization of elections, hereby extended to
noon of June 30, 1992.
The first regular elections for President and Vice-
President under this Constitution shall be held on
the second Monday of May, 1992.
 
We agree with this position.
 
While the Constitution does not expressly state that Congress
has to synchronize national and local elections, the clear intent towards
this objective can be gleaned from the Transitory Provisions (Article
XVIII) of the Constitution,[10] which show the extent to which the
Constitutional Commission, by deliberately making adjustments to the
terms of the incumbent officials, sought to attain synchronization of
elections.[11]
 
The objective behind setting a common termination date for
all elective officials, done among others through the shortening the
terms of the twelve winning senators with the least number of votes, is
to synchronize the holding of all future elections – whether national or
local – to once every three years. [12] This intention finds full support in
the discussions during the Constitutional Commission deliberations. [13]
These Constitutional Commission exchanges, read with the
provisions of the Transitory Provisions of the Constitution, all serve as
patent indicators of the constitutional mandate to hold synchronized
national and local elections, starting the second Monday of May, 1992
and for all the following elections.
 
This Court was not left behind in recognizing the
synchronization of the national and local elections as a constitutional
mandate. In Osmeña v. Commission on Elections,[14] we explained:
 
It is clear from the aforequoted
provisions of the 1987 Constitution that the terms
of office of Senators, Members of the House of
Representatives, the local officials, the President
and the Vice-President have been synchronized to
end on the same hour, date and year — noon of
June 30, 1992.
It is likewise evident from the wording of
the above-mentioned Sections that the term
of synchronization is used synonymously as the
phraseholding simultaneously since this is the
precise intent in terminating their Office Tenure on
the same day or occasion.  This common
termination date will synchronize future elections
to once every three years (Bernas, the Constitution
of the Republic of the Philippines, Vol. II, p. 605).
That the election for Senators, Members
of the House of Representatives and the local
officials (under Sec. 2, Art. XVIII) will have to be
synchronized with the election for President and
Vice President (under Sec. 5, Art. XVIII) is likewise
evident from the x x x  records of the proceedings in
the Constitutional Commission. [Emphasis
supplied.]
 
Although called regional elections, the ARMM elections
should be included among the elections to be synchronized as it is a
“local” election based on the wording and structure of the Constitution.
 
A basic rule in constitutional construction is that the words
used should be understood in the sense that they have in common use
and given their ordinary meaning, except when technical terms are
employed, in which case the significance thus attached to them prevails.
[15]
 As this Court explained in People v. Derilo,[16] “[a]s the Constitution is
not primarily a lawyer’s document, its language should be understood in
the sense that it may have in common. Its words should be given their
ordinary meaning except where technical terms are employed.”
 
          Understood in its ordinary sense, the word “local” refers to
something that primarily serves the needs of a particular limited district,
often a community or minor political subdivision. [17] Regional elections in
the ARMM for the positions of governor, vice-governor and regional
assembly representatives obviously fall within this classification, since
they pertain to the elected officials who will serve within the limited
region of ARMM.
 
From the perspective of the Constitution, autonomous regions
are considered one of the forms of local governments, as evident from
Article X  of the Constitution entitled “Local Government.”  Autonomous
regions are established and discussed under Sections 15 to 21 of this
Article – the article wholly devoted to Local Government. That an
autonomous region is considered a form of local government is also
reflected in Section 1, Article X of the Constitution, which provides:
 
Section 1. The territorial and political subdivisions
of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao, and
the Cordilleras as hereinafter provided. 
 
 
Thus, we find the contention – that the synchronization
mandated by  the Constitution does not include the regional elections of
the ARMM –unmeritorious.  We shall refer to synchronization in the
course of our discussions below, as this concept permeates the
consideration of the various issues posed in this case and must be
recalled time and again for its complete resolution.
 
 
II.  The President’s Certification on the Urgency of RA No. 10153
 
The petitioners in G.R. No. 197280 also challenge the validity
of RA No. 10153 for its alleged failure to comply with Section 26(2),
Article VI of the Constitution [18] which provides that before bills passed
by either the House or the Senate can become laws, they must pass
through three readings on separate days. The exception is when the
President certifies to the necessity of the bill’s immediate enactment.
 
The Court, in Tolentino v. Secretary of Finance,[19] explained
the effect of the President’s certification of necessity in the following
manner:
 
28
 The presidential certification dispensed
with the requirement not only of printing but also
that of reading the bill on separate days. The
phrase "except when the President certifies to the
necessity of its immediate enactment, etc." in Art.
VI, Section 26[2] qualifies the two stated conditions
before a bill can become a law: [i] the bill has
passed three readings on separate days and [ii] it
has been printed in its final form and distributed
three days before it is finally approved.
 
xxx
That upon the certification of a bill by the
President, the requirement of three readings on
separate days and of printing and distribution can
be dispensed with is supported by the weight of
legislative practice. For example, the bill defining
the certiorari jurisdiction of this Court which, in
consolidation with the Senate version, became
Republic Act No. 5440, was passed on second and
third readings in the House of Representatives on
the same day [May 14, 1968] after the bill had been
certified by the President as urgent.
 
In the present case, the records show that the President
wrote to the Speaker of the House of Representatives to certify the
necessity of the immediate enactment of a law synchronizing the ARMM
elections with the national and local elections. [20] Following
our Tolentino ruling, the President’s certification exempted both the
House and the Senate from having to comply with the three separate
readings requirement.  approved by a majority of the vote cast in a
 
On the follow-up contention that no necessity existed for the
immediate enactment of these bills since there was no public calamity
or emergency that had to be met, again we hark back to our ruling
in Tolentino:
 
The sufficiency of the factual basis of the
suspension of the writ of habeas corpus or
declaration of martial law Art. VII, Section 18, or the
existence of a national emergency justifying the
delegation of extraordinary powers to the President
under Art. VI, Section 23(2) is subject to judicial
review because basic rights of individuals may be of
hazard. But the factual basis of presidential
certification of bills, which involves doing away
with procedural requirements designed to insure
that bills are duly considered by members of
Congress, certainly should elicit a different
standard of review. [Emphasis supplied.]
 
 
 
The House of Representatives and the Senate – in the exercise
of their legislative discretion – gave full recognition to the President’s
certification and promptly enacted RA No. 10153.  Under the
circumstances, nothing short of grave abuse of discretion on the part of
the two houses of Congress can justify our intrusion under our power of
judicial review.[21]
 
The petitioners, however, failed to provide us with any cause
or justification for this course of action.  Hence, while the judicial
department and this Court are not bound by the acceptance of the
President's certification by both the House of Representatives and the
Senate, prudent exercise of our powers and respect due our co-equal
branches of government in matters committed to them by the
Constitution, caution a stay of the judicial hand. [22]
 
In any case, despite the President’s certification, the two-fold
purpose that underlies the requirement for three readings on separate
days of every bill must always be observed to enable our legislators and
other parties interested in pending bills to intelligently respond to
them.  Specifically,  the purpose with respect to Members of Congress is:
(1) to inform the legislators of the matters they shall vote on and (2) to
give them notice that a measure is in progress through the enactment
process.[23]
 
We find, based on the records of the deliberations on the law,
that both advocates and the opponents of the proposed measure had
sufficient opportunities to present their views. In this light, no reason
exists to nullify RA No. 10153 on the cited ground. 
 
III.  A.  RA No. 9333 and RA No. 10153 are not amendments to RA No.
9054
The effectivity of RA No. 9333 and RA No. 10153 has also been
challenged because they did not comply with Sections 1 and 3, Article
XVII of RA No. 9054 in amending this law. These provisions require:
 
Section 1. Consistent with the provisions of the
Constitution, this Organic Act may be reamended or
revised by the Congress of the Philippines upon a
vote of two-thirds (2/3) of the Members of the
House of Representatives and of the Senate voting
separately.
 
Section 3. Any amendment to or revision of this
Organic Act shall become effective only when
plebiscite called for the purpose, which shall be
held not earlier than sixty (60) days or later than
ninety (90) days after the approval of such
amendment or revision.
 
We find no merit in this contention.
 
In the first place, neither RA No. 9333 nor RA No. 10153
amends RA No. 9054.  As an examination of these laws will show, RA No.
9054 only provides for the schedule of the first ARMM elections and
does not fix the date of the regular elections.  A need therefore existed
for the Congress to fix the date of the subsequent ARMM regular
elections, which it did by enacting RA No. 9333 and thereafter, RA No.
10153. Obviously, these subsequent laws – RA No. 9333 and RA No.
10153  – cannot be considered amendments to RA No. 9054 as they did
not change or revise any provision in the latter law; they merely filled in
a gap in RA No. 9054 or supplemented the law by providing the date of
the subsequent regular elections.
 
This view – that Congress thought it best to leave the
determination of the date of succeeding ARMM elections to legislative
discretion – finds support in ARMM’s recent history.
 
To recall, RA No. 10153 is not the first law passed that
rescheduled the ARMM elections.  The First Organic Act – RA No. 6734 –
not only did not fix the date of the subsequent elections; it did not even
fix the specific date of the first ARMM elections, [24]leaving the date to be
fixed in another legislative enactment. Consequently, RA No. 7647, [25] RA
No. 8176,[26] RA No. 8746,[27]RA No. 8753,[28] and RA No. 9012[29] were all
enacted by Congress to fix the dates of the ARMM elections. Since these
laws did not change or modify any part or provision of RA No. 6734, they
were not amendments to this latter law.  Consequently, there was no
need to submit them to any plebiscite for ratification.
 
The Second Organic Act – RA No. 9054 – which lapsed into
law on March 31, 2001, provided that the first elections would be held
29
on the second Monday of September 2001. Thereafter, Congress passed
RA No. 9140[30] to reset the date of the ARMM elections.  Significantly,
while RA No. 9140 also scheduled the plebiscite for the ratification of
the Second Organic Act (RA No. 9054), the new date of the ARMM
regional elections fixed in RA No. 9140 was not among the provisions
ratified in the plebiscite held to approve RA No. 9054. Thereafter,
Congress passed RA No. 9333,[31] which further reset the date of the
ARMM regional elections. Again, this law was not ratified through a
plebiscite.
 
From these legislative actions, we see the clear intention of
Congress to treat the laws which fix the date of the subsequent ARMM
elections as separate and distinct from the Organic Acts. Congress only
acted consistently with this intent when it passed RA No. 10153 without
requiring compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No. 9054.
III. B. Supermajority voting requirement unconstitutional for giving RA
No. 9054 the character of an irrepealable law
 
Even assuming that RA No. 9333 and RA No. 10153 did in fact
amend RA No. 9054, the supermajority (2/3) voting requirement
required under Section 1, Article XVII of RA No. 9054 [32] has to be struck
down for giving RA No. 9054 the character of an irrepealable law by
requiring more than what the Constitution demands.
 
Section 16(2), Article VI of the Constitution provides that a
“majority of each House shall constitute a quorum to do business.” In
other words, as long as majority of the members of the House of
Representatives or the Senate are present, these bodies have the
quorum needed to conduct business and hold session.  Within a
quorum, a vote of majority is generally sufficient to enact laws or
approve acts.  seemingly general terms of the Constitution and the obvious absurdity
 
In contrast, Section 1, Article XVII of RA No. 9054 requires a
vote of no less than two-thirds (2/3) of the Members of the House of
Representatives and of the Senate, voting separately, in order to
effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is
higher than what the Constitution requires for the passage of bills, and
served to restrain the plenary powers of Congress to amend, revise or
repeal the laws it had passed.  The Court’s pronouncement in City of
Davao v. GSIS[33]  on this subject best explains the basis and reason for
the unconstitutionality:
 
Moreover, it would be noxious anathema to
democratic principles for a legislative body to have the
ability to bind the actions of future legislative body,
considering that both assemblies are regarded with
equal footing, exercising as they do the same plenary
powers. Perpetual infallibility is not one of the
attributes desired in a legislative body, and a
legislature which attempts to forestall future
amendments or repeals of its enactments labors
under delusions of omniscience.
 
xxx
 
A state legislature has a plenary law-making
power over all subjects, whether pertaining to persons
or things, within its territorial jurisdiction, either to
introduce new laws or repeal the old, unless prohibited
expressly or by implication by the federal constitution
or limited or restrained by its own. It cannot bind itself
or its successors by enacting irrepealable laws except
when so restrained. Every legislative body may modify
or abolish the acts passed by itself or its predecessors.
This power of repeal may be exercised at the same
session at which the original act was passed; and even
while a bill is in its progress and before it becomes a
law. This legislature cannot bind a future legislature
to a particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing
statutes.[34](Emphasis ours.)
 
 
Thus, while a supermajority is not a total ban against a repeal,
it is a limitation in excess of what the Constitution requires on the
passage of bills and is constitutionally obnoxious because it significantly
constricts the future legislators’ room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the
plebiscite requirement found in Section 18, Article X of the
Constitution
The requirements of RA No. 9054 not only required an
unwarranted supermajority, but enlarged as well the plebiscite
requirement, as embodied in its Section 3, Article XVII of that Act.   As we
did on the supermajority requirement, we find the enlargement of the
plebiscite requirement required under Section 18, Article X of the
Constitution to be excessive to point of absurdity and, hence, a violation
of the Constitution. 
 
Section 18, Article X of the Constitution states that the
plebiscite is required only for the creation of autonomous regions and
for determining which provinces, cities and geographic areas will be
included in the autonomous regions. While the settled rule is that
amendments to the Organic Act have to comply with the plebiscite
requirement in order to become effective, [35] questions on the extent of
the matters requiring ratification may unavoidably arise because of the
that would result if a plebiscite were to be required for every statutory
amendment.
 
Section 18, Article X of the Constitution plainly states that
“The creation of the autonomous region shall be effective when
approved by the majority of the votes case by the constituent units in a
plebiscite called for the purpose.”  With these wordings as standard, we
interpret the requirement to mean that only amendments to, or
revisions of, the Organic Act constitutionally-essential to the creation
of autonomous regions – i.e., those aspects specifically mentioned in the
Constitution which Congress must provide for in the Organic Act –
require ratification through a plebiscite.  These amendments to the
Organic Act are those that relate to: (a) the basic structure of the
regional government; (b) the region’s judicial system, i.e.,
the  special  courts  with  personal, family, and property law jurisdiction;
and, (c) the grant and extent of the legislative powers constitutionally
conceded to the regional government under Section 20, Article X of the
Constitution.[36]
 
The date of the ARMM elections does not fall under any of the
matters that the Constitution specifically mandated Congress to provide
for in the Organic Act. Therefore, even assuming that the supermajority
votes and the plebiscite requirements are valid, any change in the date
of elections cannot be construed as a substantial amendment of the
Organic Act that would require compliance with these requirements.
 
IV.  The synchronization issue
 
As we discussed above, synchronization of national and local
elections is a constitutional mandate that Congress must provide for and
this synchronization must include the ARMM elections.  On this point, an
existing law in fact already exists – RA No. 7166 – as the forerunner of
the current RA No. 10153. RA No. 7166 already provides for the
synchronization of local elections with the national and congressional
30
elections.  Thus, what RA No. 10153 provides is an old matter for local
governments (with the exception
of barangay and Sanggunian Kabataan elections where the terms are
not constitutionally provided) and is technically a reiteration of what is
already reflected in the law, given that regional elections are in reality
local elections by express constitutional recognition.[37]
 
To achieve synchronization, Congress necessarily has to
reconcile the schedule of the ARMM’s regular elections (which should
have been held in August 2011 based on RA No. 9333) with the fixed
schedule of the national and local elections (fixed by RA No. 7166 to be
held in May 2013).  serve as a standard that Congress must observe in dealing with
 
During the oral arguments, the Court identified the three
options open to Congress in order to resolve this problem. These options
are: (1) to allow the elective officials in the ARMM to remain in office in
a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054,
until those elected in the synchronized elections assume office; [38] (2) to
hold special elections in the ARMM, with the terms of those elected to
expire when those elected in the synchronized elections assume office;
or (3) to authorize the President to appoint OICs, pursuant to Section 3
of RA No. 10153, also until those elected in the synchronized elections
assume office.
 
As will be abundantly clear in the discussion below, Congress,
in choosing to grant the President the power to appoint OICs, chose the
correct option and passed RA No. 10153 as a completely valid law.
 
V.                           The Constitutionality of RA No. 10153
 
A.             Basic Underlying Premises
To fully appreciate the available options, certain underlying
material premises must be fully understood.  The first is the extent of
the powers of Congress to legislate; the second is the constitutional
mandate for the synchronization of elections; and the third is on the
concept of autonomy as recognized and established under the 1987
Constitution.  kabataan   elections) left it with the problem of how to provide the
 
The grant of legislative power to Congress is broad, general
and comprehensive. [39] The legislative body possesses plenary power for
all purposes of civil government. [40] Any power, deemed to be legislative
by usage and tradition, is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere. [41]  Except as limited by the
Constitution, either expressly or impliedly, legislative power embraces
all subjects and extends to all matters of general concern or common
interest.[42]
 
The constitutional limitations on legislative power are either
express or implied. The express limitations are generally provided in
some provisions of the Declaration of Principles and State Policies
(Article 2) and in the provisions Bill of Rights (Article 3). Other
constitutional provisions (such as the initiative and referendum clause of
Article 6, Sections 1 and 32, and the autonomy provisions of Article X)
provide their own express limitations. The implied limitations are found
“in the evident purpose which was in view and the circumstances and
historical events which led to the enactment of the particular provision
as a part of organic law.”[43]  The creation of local government units also represents
 
The constitutional provisions on autonomy – specifically,
Sections 15 to 21 of Article X of the Constitution – constitute express
limitations on legislative power as they define autonomy, its
requirements and its parameters, thus limiting what is otherwise the
unlimited power of Congress to legislate on the governance of the
autonomous region.
 
Of particular relevance to the issues of the present case are
the limitations posed by the prescribed basic structure of government
– i.e.,  that the government must have an executive department and a
legislative assembly, both of which must be elective and representative
of the constituent political units; national government, too, must not
encroach on the legislative powers granted under Section 20, Article
X.  Conversely and as expressly reflected in Section 17, Article X, “all
powers and functions not granted by this Constitution or by law to the
autonomous regions shall be vested in the National Government.”
 
The totality of Sections 15 to 21 of Article X should likewise
legislation touching on the affairs of the autonomous regions.  The terms
of these sections leave no doubt on what the Constitution intends – the
idea of self-rule or self-government, in particular, the power to legislate
on a wide array of social, economic and administrative matters.  But
equally clear under these provisions are the permeating principles of
national sovereignty and the territorial integrity of the Republic, as
expressed in the above-quoted Section 17 and in Section 15. [44]  In other
words, the Constitution and the supporting jurisprudence, as they now
stand, reject the notion of imperium et imperio[45]  in the relationship
between the national and the regional governments.
 
In relation with synchronization, both autonomy and the
synchronization of national and local elections are recognized and
established constitutional mandates, with one being as compelling as
the other.  If their compelling force differs at all, the difference is in their
coverage; synchronization operates on and affects the whole country,
while regional autonomy – as the term suggests – directly carries a
narrower regional effect although its national effect cannot be
discounted.
These underlying basic concepts characterize the powers and
limitations of Congress when it acted on RA No. 10153.  To succinctly
describe the legal situation that faced Congress then, its decision to
synchronize the regional elections with the national, congressional and
all other local elections (save for barangay and sangguniang
ARMM with governance in the intervening period between the
expiration of the term of those elected in August 2008 and the
assumption to office – twenty-one (21) months away – of those who will
win in the synchronized elections on May 13, 2013. 
 
The problem, in other words, was for interim measures for
this period, consistent with the terms of the Constitution and its
established supporting jurisprudence, and with the respect due to the
concept of autonomy.  Interim measures, to be sure, is not a strange
phenomenon in the Philippine legal landscape. The Constitution’s
Transitory Provisions themselves collectively provide measures for
transition from the old constitution to the new [46]  and for the
introduction of new concepts. [47]  As previously mentioned, the
adjustment of elective terms and of elections towards the goal of
synchronization first transpired under the Transitory Provisions.  The
adjustments, however, failed to look far enough or deeply enough,
particularly into the problems that synchronizing regional autonomous
elections would entail; thus, the present problem is with us today.
 
instances when interim measures are required.  In the creation of
Quezon del Sur[48] and Dinagat Islands,[49] the creating statutes
authorized the President to appoint an interim governor, vice-governor
and members of the sangguniang panlalawigan although these
positions are essentially elective in character; the appointive officials
were to serve until a new set of provincial officials shall have been
elected and qualified.[50]  A similar authority to appoint is provided in the
transition of a local government from a sub-province to a province. [51]
31
 In all these, the need for interim measures is dictated by
necessity; out-of-the-way arrangements and approaches were adopted
or used in order to adjust to the goal or objective in sight in a manner
that does not do violence to the Constitution and to reasonably
accepted norms.  Under these limitations, the choice of measures was a
question of wisdom left to congressional discretion.
 
To return to the underlying basic concepts, these concepts
shall serve as the guideposts and markers in our discussion of the
options available to Congress to address the problems brought about by
the synchronization of the ARMM elections, properly understood as
interim measures that Congress had to provide.  The proper
understanding of the options as interim measures assume prime
materiality as it is under these terms that the passage of RA No. 10153
should be measured, i.e.,  given the constitutional objective of
synchronization that cannot legally be faulted, did Congress gravely
abuse its discretion or violate the Constitution when it addressed
through RA No. 10153 the concomitant problems that the adjustment
of elections necessarily brought with it?            If it will be claimed that the holdover period is effectively another
 
B. Holdover Option is Unconstitutional
 
We rule out the first option – holdover for those who were
elected in executive and legislative positions in the ARMM during the
2008-2011 term – as an option that Congress could have chosen because
a holdover violates Section 8, Article X of the Constitution.  This
provision states:
 
Section 8. The term of office of elective
local officials, except barangay officials, which shall
be determined by law, shall be three yearsand no
such official shall serve for more than three
consecutive terms. [emphases ours]
 
 
Since elective ARMM officials are local officials, they are
covered and bound by the three-year term limit prescribed by the
Constitution; they cannot extend their term through a holdover. As this
Court put in Osmeña v. COMELEC:[52]
It is not competent for the legislature to
extend the term of officers by providing that they
shall hold over until their successors are elected
and qualified where the constitution has in effect
or by clear implication prescribed the term and
when the Constitution fixes the day on which the
official term shall begin, there is no legislative
authority to continue the office beyond that
period, even though the successors fail to qualify
within the time.
 
In American Jurisprudence it
has been stated as follows:
 
“It has been broadly
stated that the legislature
cannot, by an act postponing
the election to fill an office
the term of which is limited by
the Constitution, extend the
term of the incumbent
beyond the period as limited
by the Constitution.”
[Emphasis ours.]
 
Independently of the Osmeña ruling, the primacy of the
Constitution as the supreme law of the land dictates that where the
Constitution has itself made a determination or given its mandate, then
the matters so determined or mandated should be respected until the
Constitution itself is changed by amendment or repeal through the
applicable constitutional process. A necessary corollary is that none of
the three branches of government can deviate from the constitutional
mandate except only as the Constitution itself may allow. [53] If at all,
Congress may only pass legislation filing in details to fully operationalize
the constitutional command or to implement it by legislation if it is non-
self-executing; this Court, on the other hand, may only interpret the
mandate if an interpretation is appropriate and called for. [54]
 
          In the case of the terms of local officials, their term has been fixed
clearly and unequivocally, allowing no room for any implementing
legislation with respect to the fixed term itself and no vagueness that
would allow an interpretation from this Court. Thus, the term of three
years for local officials should stay at three (3) years as fixed by the
Constitution and cannot be extended by holdover by Congress.
 
term mandated by Congress, the net result is for Congress to create a
new term and to appoint the occupant for the new term. This view – like
the  extension of the elective term – is constitutionally infirm because
Congress cannot do indirectly what it cannot do directly, i.e., to act in a
way that would effectively extend the term of the incumbents. Indeed, if
acts that cannot be legally done directly can be done indirectly, then all
laws would be illusory. [55] Congress cannot also create a new term and
effectively appoint the occupant of the position for the new term. This is
effectively an act of appointment by Congress and an unconstitutional
intrusion into the constitutional appointment power of the President.
[56]
 Hence, holdover – whichever way it is viewed – is a constitutionally
infirm option that Congress could not have undertaken.
 
          Jurisprudence, of course, is not without examples of cases where
the question of holdover was brought before, and given the imprimatur
of approval by, this Court. The present case though differs significantly
from past cases with contrary rulings, particularly from Sambarani v.
COMELEC,[57] Adap v. Comelec,[58] and Montesclaros v. Comelec,[59]  where
the Court ruled that the elective officials could hold on to their positions
in a hold over capacity.
All these past cases refer to elective barangay or sangguniang
kabataan  officials  whose  terms of office are  not explicitly provided for
in  the  Constitution;  the present case, on the other hand, refers to local
elective officials – the ARMM Governor, the ARMM Vice-Governor, and
the members of the Regional Legislative Assembly – whose terms fall
within the three-year term limit set by Section 8, Article X of the
Constitution. Because of their constitutionally limited term, Congress
cannot legislate an extension beyond the term for which they were
originally elected.
 
Even assuming that holdover is constitutionally permissible,
and there had been statutory basis for it (namely Section 7, Article VII of
RA No. 9054) in the past, [60] we have to remember that the rule of
holdover can only apply as an available option where no express or
implied legislative intent to the contrary exists; it cannot apply where
such contrary intent is evident.[61]
 
Congress, in passing RA No. 10153, made it explicitly clear that
it had the intention of suppressing the holdover rule that prevailed
under RA No. 9054 by completely removing this provision. The deletion
is a policy decision that is wholly within the discretion of Congress to
make in the exercise of its plenary legislative powers; this Court
cannot pass upon questions of wisdom, justice or expediency of
legislation,[62] except where an attendant unconstitutionality or grave
abuse of discretion results.
 
C.  The COMELEC has no authority  to order special elections
32
  
Another option proposed by the petitioner in G.R. No. 197282
is for this Court to compel COMELEC to immediately conduct special
elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially legislative
in nature, as evident from, and exemplified by, the following provisions
of the Constitution:
Section 8, Article VI, applicable to the legislature, provides:
 
Section 8.  Unless otherwise provided by
law, the regular election of the Senators and the
Members of the House of Representatives shall be
held on the second Monday of May. [Emphasis
ours]
           
 
Section 4(3), Article VII, with the same tenor but applicable solely to the
President and Vice-President, states:
xxxx
 
Section 4. xxx Unless otherwise provided
by law, the regular election for President and Vice-
President shall be held on the second Monday of
May. [Emphasis ours]
 
while Section 3, Article X, on local government, provides:
 
Section 3. The Congress shall enact a
local government code which shall provide for xxx
the qualifications, election, appointment and
removal, term, salaries, powers and functions and
duties of local officials[.] [Emphases ours]  the preparation and the transmission of the
 
These provisions support the conclusion that no elections may
be held on any other date for the positions of President, Vice President,
Members of Congress and local officials, except when so provided by
another Act of Congress, or upon orders of a body or officer to whom
Congress may have delegated either the power or the authority to
ascertain or fill in the details in the execution of that power. [63]
 
Notably, Congress has acted on the ARMM elections by
postponing the scheduled August 2011 elections and setting another
date – May 13, 2011 – for regional elections synchronized with the
presidential, congressional and other local elections.  By so doing,
Congress itself has made  a policy decision  in the exercise of its
legislative wisdom that  it shall not call special electionsas an
adjustment measure in synchronizing the ARMM elections with the
other elections.
 
After Congress has so acted, neither the Executive nor the
Judiciary can act to the contrary by ordering special elections instead at
the call of the COMELEC.  This Court, particularly, cannot make this call
without thereby supplanting the legislative decision and effectively
legislating.  To be sure, the Court is not without the power to declare an
act of Congress null and void for being unconstitutional or for having
been exercised in grave abuse of discretion. [64]  But our power rests on
very narrow ground and is merely to annul a contravening act of
Congress; it is not to supplant the decision of Congress nor to mandate
what Congress itself should have done in the exercise of its legislative
powers.  Thus, contrary to what the petition in G.R. No. 197282 urges,
we cannot compel COMELEC to call for special elections.
 
Furthermore, we have to bear in mind that the constitutional
power of the COMELEC, in contrast with the power of Congress to call
for, and to set the date of, elections, is limited to enforcing and
administering all laws and regulations relative to the conduct of an
election.[65] Statutorily, COMELEC has no power to call for the holding of
special elections unless pursuant to a specific statutory grant.  True,
Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the
power to postpone elections to another date. However, this power is
limited to, and can only be exercised within, the specific terms and
circumstances provided for in the law. We quote:
Section 5.  Postponement of election.
- When for any serious cause such
as violence, terrorism, loss or destruction of
election paraphernalia or records, force majeure,
and other analogous causes of such a nature that
the holding of a free, orderly and honest election
should become impossible in any political
subdivision, the Commission, motu proprio or upon
a verified petition by any interested party, and after
due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard,
shall postpone the election therein to a date which
should be reasonably close to the date of the
election not held, suspended or which resulted in
a failure to elect but not later than thirty days after
the cessation of the cause for such postponement
or suspension of the election or failure to elect.
Section 6. Failure of election. - If, on
account of force
majeure, violence, terrorism, fraud, or other
analogous causes the election in any polling place
has not been held on the date fixed, or had been
suspended before the hour fixed by law for the
closing of the voting, or after the voting and during
election returns or in the custody or canvass
thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension of
election would affect the result of the election, the
Commission shall, on the basis of a verified petition
by any interested party and after due notice and
hearing, call for the holding or continuation of the
election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the
date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such
postponement or suspension of the election or
failure to elect. [Emphasis ours]
 
 
A close reading of Section 5 of BP 881 reveals that it is meant
to address instances where elections have already been scheduled to
take place but have to be postponed because of (a) violence, (b)
terrorism, (c) loss or destruction of election paraphernalia or records,
(d) force majeure, and (e) other analogous causes of such a nature that
the holding of a free, orderly and honest election should become
impossible in any political subdivision.  Under the principle of ejusdem
generis,  the term “analogous causes” will be restricted to
those unforeseen or unexpected events that prevent the holding of the
scheduled elections. These “analogous causes” are further defined by
the phrase “of such nature that the holding of a free, orderly and honest
election should become impossible.”
 
Similarly, Section 6 of BP 881 applies only to those situations
where elections have already been scheduled but do not take place
because of (a) force majeure, (b) violence, (c) terrorism, (d) fraud, or
(e) other analogous causes the election in any polling place has not
33
been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the
custody or canvass thereof,such election results in a failure to elect. As
in Section 5 of BP 881, Section 6 addresses instances where the elections
do not occur or had to be suspended because
of unexpected and unforeseen circumstances.
 
In the present case, the postponement of the ARMM
elections is by law – i.e., by congressional policy – and is pursuant to the
constitutional mandate of synchronization of national and local
elections. By no stretch of the imagination can these reasons be given
the same character as the circumstances contemplated by Section 5 or
Section 6 of BP 881, which all pertain to extralegal causes that obstruct
the holding of elections.  Courts, to be sure, cannot enlarge the scope of
a statute under the guise of interpretation, nor include situations not
provided nor intended by the lawmakers. [66] Clearly, neither Section 5
nor Section 6 of BP 881 can apply to the present case and this Court has
absolutely no legal basis to compel the COMELEC to hold special
elections.
 
D.  The Court has no power to shorten the terms of elective
officials
 
 
Even assuming that it is legally permissible for the Court to
compel the COMELEC to hold special elections, no legal basis likewise
exists to rule that the newly elected ARMM officials shall hold office only
until the ARMM officials elected in the synchronized elections shall have
assumed office. 
In the first place, the Court is not empowered to adjust the
terms of elective officials. Based on the Constitution, the power to fix
the term of office of elective officials, which can be exercised only in the
case of barangay officials,[67] is specifically given to Congress. Even
Congress itself may be denied such power, as shown when the
Constitution shortened the terms of twelve Senators obtaining the least
votes,[68] and extended the terms of the President and the Vice-
President[69] in order to synchronize elections; Congress was not granted
this same power.  The settled rule is that terms fixed by the Constitution
cannot be changed by mere statute. [70]  More particularly, not even
Congress and certainly not this Court, has the authority to fix the terms
of elective local officials in the ARMM for  less, or more, than the
constitutionally mandated three years [71] as this tinkering would directly
contravene Section 8, Article X of the Constitution as we ruled
in Osmena.
 
Thus, in the same way that the term of elective ARMM
officials cannot be extended through a holdover, the term cannot be
shortened by putting an expiration date earlier than the three (3) years
that the Constitution itself commands.  This is what will happen – a
term of less than two years – if a call for special elections shall
prevail. In sum, while synchronization is achieved, the result is at the
cost of a violation of an express provision of the Constitution.  If at all, the gravest challenge posed by the petitions to the
 
Neither we nor Congress can opt to shorten the tenure of
those officials to be elected in the ARMM elections instead of acting on
their term (where the “term” means the time during which the officer
may claim to hold office as of right and fixes the interval after which the
several incumbents shall succeed one another, while the “tenure”
represents the term during which the incumbent actually holds the
office).[72] As with the fixing of the elective term, neither Congress nor
the  Court has any legal basis to shorten the tenure of elective ARMM
officials. They would commit an unconstitutional act and gravely abuse
their discretion if they do so.
 
E.  The President’s Power to Appoint OICs
 
The above considerations leave only Congress’ chosen interim
measure – RA No. 10153 and the appointment by the President of OICs
to govern the ARMM during the pre-synchronization period pursuant to
Sections 3, 4 and 5 of this law – as the only measure that Congress can
make.  This choice itself, however, should be examined for any
attendant constitutional infirmity.
 
At the outset, the power to appoint is essentially executive in
nature, and the limitations on or qualifications to the exercise of this
power should be strictly construed; these limitations or qualifications
must be clearly stated in order to be recognized. [73] The appointing
power is embodied in Section 16, Article VII of the Constitution, which
states:
 
Section 16. The President shall nominate
and, with the consent of the Commission on
Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers
and consuls or officers of the armed forces from the
rank of colonel or naval captain, and other officers
whose appointments are vested in him in this
Constitution. He shall also appoint all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom
he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of
other officers lower in rank in the President alone,
in the courts, or in the heads of departments,
agencies, commissions, or boards. [emphasis ours]
 
This provision classifies into four groups the officers that the
President can appoint. These are:
 
First, the heads of the executive departments; ambassadors;
other public ministers and consuls; officers of the Armed Forces of the
Philippines, from the rank of colonel or naval captain; and other officers
whose appointments are vested in the President in this Constitution;
 
Second, all other officers of the government whose
appointments are not otherwise provided for by law;
 
Third, those whom the President may be authorized by law
to appoint;  and
 
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.[74]
Since the President’s authority to appoint OICs emanates from
RA No. 10153, it falls under the third group of officials that the President
can appoint pursuant to Section 16, Article VII of the Constitution. Thus,
the assailed law facially rests on clear constitutional basis. 
 
authority to appoint OICs under Section 3 of RA No. 10153 is the
assertion that the Constitution requires that the ARMM executive and
legislative officials to be “elective and representative of the constituent
political units.” This requirement indeed is an express limitation whose
non-observance in the assailed law leaves the appointment of OICs
constitutionally defective. 
 
After fully examining the issue, we hold that this
alleged  constitutional problem is more apparent than real and becomes
very real only if RA No. 10153 were to be mistakenly read as a law that
changes the elective and representative character of ARMM
positions.  RA No. 10153, however, does not in any way amend what the
organic law of the ARMM  (RA No. 9054) sets outs in terms of structure
of governance.  What RA No. 10153 in fact only does is to “appoint
34
officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall
perform the functions pertaining to the said offices until the officials duly
elected in the May 2013 elections shall have qualified and assumed
office.” This power is far different from appointing elective ARMM
officials for the abbreviated term ending on the assumption to office of
the officials elected in the May 2013 elections.
 
As we have already established in our discussion of the
supermajority and plebiscite requirements, the legal reality is that RA
No. 10153 did not amend RA No. 9054.  RA No. 10153, in fact, provides
only for synchronization of elections and for the interim measures that
must in the meanwhile prevail.  And this is how RA No. 10153 should be
read – in the manner it was written and based on its unambiguous facial
terms.[75] Aside from its order for synchronization, it is purely and
simply an interim measure responding to the adjustments that the
synchronization requires.  elective officials with OICs.
 
Thus, the appropriate question to ask is whether the interim
measure is an unreasonable move for Congress to adopt, given the legal
situation that the synchronization unavoidably brought with it.  In more
concrete terms and based on the above considerations,given the plain
unconstitutionality of providing for a holdover and the unavailability
of constitutional possibilities for lengthening or shortening the term of
the elected ARMM officials, is the choice of the President’s power to
appoint – for a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution – an
unconstitutional or unreasonable choice for Congress to make?
 
Admittedly, the grant of the power to the President under
other situations or where the power of appointment would extend
beyond the adjustment period for synchronization would be to foster a
government that is not “democratic and republican.” For then, the
people’s right to choose the leaders to govern them may be said to
be systemically withdrawn to the point of fostering an undemocratic
regime.  This is the grant that would frontally breach the “elective and
representative” governance requirement of Section 18, Article X of the
Constitution.  the Court now has to deal with the dilemma of a vacuum in governance
 
But this conclusion would not be true under the very limited
circumstances contemplated in RA No. 10153 where the period is fixed
and, more importantly, the terms of governance – both under Section
18, Article X of the Constitution and RA No. 9054 – will
not systemically be touched nor affected at all.  To repeat what has
previously been said, RA No. 9054 will govern unchanged and
continuously, with full effect in accordance with the Constitution, save
only for the interim and temporary measures that synchronization of
elections requires.   they transpired in the past. [78]  Thus, it would be reckless to assume that
 
Viewed from another perspective, synchronization will
temporarily disrupt the election process in a local community, the
ARMM, as well as the community’s choice of leaders, but this will take
place under a situation of necessity and as an interim measure in the
manner that interim measures have been adopted and used in the
creation of local government units [76] and the adjustments of sub-
provinces to the status of provinces. [77] These measures, too, are used in
light of the wider national demand for the synchronization of elections
(considered vis-à-vis the regional interests involved).  The adoption of
these measures, in other words, is no different from the exercise by
Congress of the inherent police power of the State, where one of the
essential tests is the reasonableness of the interim measure taken in
light of the given circumstances.
 
Furthermore, the “representative” character of the chosen
leaders need not necessarily be affected by the appointment of OICs as
this requirement is really a function of the appointment process; only
the “elective” aspect shall be supplanted by the appointment of OICs.  In
this regard, RA No. 10153 significantly seeks to address concerns arising
from the appointments by providing, under Sections 3, 4 and 5 of the
assailed law, concrete terms in the Appointment of OIC, the Manner and
Procedure of Appointing OICs, and their Qualifications.
 
Based on these considerations, we hold that RA No. 10153 –
viewed in its proper context – is a law that is not violative of the
Constitution (specifically, its autonomy provisions), and one that is
reasonable as well under the circumstances.
 
VI. Other Constitutional Concerns
 
Outside of the above concerns, it has been argued during the
oral arguments that upholding the constitutionality of RA No. 10153
would set a dangerous precedent of giving the President the power to
cancel elections anywhere in the country, thus allowing him to replace
 
This claim apparently misunderstands that an across-the-
board cancellation of elections is a matter for Congress, not for the
President, to address. It is a power that falls within the powers of
Congress in the exercise of its legislative powers.  Even Congress, as
discussed above, is limited in what it can legislatively undertake with
respect to elections. 
 
If RA No. 10153 cancelled the regular August 2011 elections, it
was for a very specific and limited purpose – the synchronization of
elections.  It was a temporary means to a lasting end – the
synchronization of elections. Thus, RA No. 10153 and the support that
the Court gives this legislation are likewise clear and specific, and cannot
be transferred or applied to any other cause for the cancellation of
elections. Any other localized cancellation of elections and call for
special elections can occur only in accordance with the power already
delegated by Congress to the COMELEC, as above discussed.   
 
Given that the incumbent ARMM elective officials cannot
continue to act in a holdover capacity upon the expiration of their terms,
and this Court cannot compel the COMELEC to conduct special elections,
in the ARMM.
 
To emphasize the dire situation a vacuum brings, it should not
be forgotten that a period of 21 months – or close to 2 years –
intervenes from the time that the incumbent ARMM elective officials’
terms expired and the time the new ARMM elective officials begin their
terms in 2013. As the lessons of our Mindanao history – past and current
– teach us, many developments, some of them critical and adverse, can
transpire in the country’s Muslim areas in this span of time in the way
the presence of an acting ARMM Governor, an acting Vice-Governor and
a fully functioning Regional Legislative Assembly can be done away with
even temporarily.  To our mind, the appointment of OICs under the
present circumstances is an absolute necessity.
 
Significantly, the grant to the President of the power to
appoint OICs to undertake the functions of the elective members of the
Regional Legislative Assembly is neither novel nor innovative.  We hark
back to our earlier pronouncement in Menzon v. Petilla, etc., et al.:[79]
 
It may be noted that under
Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is
empowered to make temporary appointments in
certain public offices, in case of any vacancy that
may occur. Albeit both laws deal only with the
filling of vacancies in appointive positions.
However, in the absence of any contrary provision
in the Local Government Code and in the best
35
 interest of public service, we see no cogent reason
why the procedure thus outlined by the two laws
may not be similarly applied in the present case.
The respondents contend that the provincial board
is the correct appointing power. This argument has
no merit. As between the President who has
supervision over local governments as provided by
law and the members of the board who are junior
to the vice-governor, we have no problem ruling in
favor of the President, until the law provides
otherwise.
 
A vacancy creates an anomalous
situation and finds no approbation under the law
for it deprives the constituents of their right of
representation and governance in their own local
government.
 
In a republican form of government, the
majority rules through their chosen few, and if one
of them is incapacitated or absent, etc., the
management of governmental affairs is, to that
extent, may be hampered. Necessarily, there will
be a consequent delay in the delivery of basic
services to the people of Leyte if the Governor or
the Vice-Governor is missing.[80](Emphasis ours.)
As in Menzon, leaving the positions of ARMM Governor, Vice
Governor, and members of the Regional Legislative Assembly vacant for
21 months, or almost 2 years, would clearly cause disruptions and delays
in the delivery of basic services to the people, in the proper
management of the affairs of the regional government, and in
responding to critical developments that may arise. When viewed in this
context, allowing the President in the exercise of his constitutionally-
recognized appointment power to appoint OICs is, in our judgment, a
reasonable measure to take.
 
B.  Autonomy in the ARMM
 
It is further argued that while synchronization may be
constitutionally mandated, it cannot be used to defeat or to impede the
autonomy that the Constitution granted to the ARMM. Phrased in this
manner, one would presume that there exists a conflict between two
recognized Constitutional mandates – synchronization and regional
autonomy – such that it is necessary to choose one over the other.
 
We find this to be an erroneous approach that violates a basic
principle in constitutional construction – ut magis valeat quam pereat:
that the Constitution is to be interpreted as a whole, [81] and one
mandate should not be given importance over the other except where
the primacy of one over the other is clear.[82]  We refer to the Court’s
declaration in Ang-Angco v. Castillo, et al.,[83]thus:
A provision of the constitution should not
be construed in isolation from the rest. Rather, the
constitution must be interpreted as a whole, and
apparently, conflicting provisions should be
reconciled and harmonized in a manner that may
give to all of them full force and effect.[Emphasis
supplied.]
 
Synchronization is an interest that is as constitutionally entrenched as
regional autonomy. They are interests that this Court should reconcile
and give effect to, in the way that Congress did in RA No. 10153 which
provides the measure to transit to synchronized regional elections with
the least disturbance on the interests that must be
respected.  Particularly, regional autonomy will be respected instead of
being sidelined, as the law does not in any way alter, change or modify
its governing features, except in a very temporary manner and only as
necessitated by the attendant circumstances.  
 
          Elsewhere, it has also been argued that the ARMM elections
should not be synchronized with the national and local elections in order
to maintain the autonomy of the ARMM and insulate its own electoral
processes from the rough and tumble of nationwide and local
elections.  This argument leaves us far from convinced of its merits.
 
As heretofore mentioned and discussed, while autonomous
regions are granted political autonomy, the framers of the Constitution
never equated autonomy with independence. The ARMM as a regional
entity thus continues to operate within the larger framework of the
State and is still subject to the national policies set by the national
government, save only for those specific areas reserved by the
Constitution for regional autonomous determination. As reflected during
the constitutional deliberations of the provisions on autonomous
regions:
 
Mr. Bennagen. xxx We do not see here a
complete separation from the central government,
but rather an efficient working relationship
between the autonomous region and the central
government. We see this as an effective
partnership, not a separation.
Mr. Romulo. Therefore, complete
autonomy is not really thought of as complete
independence.
 
Mr. Ople. We define it as a measure of
self-government within the larger political
framework of the nation.[84] [Emphasis supplied.]
 
This exchange of course is fully and expressly reflected in the above-
quoted Section 17, Article X of the Constitution, and by the express
reservation under Section 1 of the same Article that autonomy shall
be “within the framework of this Constitution and the national
sovereignty as well as the territorial integrity of the Republic of
the  Philippines.”
 
Interestingly, the framers of the Constitution initially
proposed to remove Section 17 of Article X, believing it to be
unnecessary in light of the enumeration of powers granted to
autonomous regions in Section 20, Article X of the Constitution. Upon
further reflection, the framers decided to reinstate the provision in
order to “make it clear, once and for all, that these are the limits of the
powers of the autonomous government. Those not enumerated are
actually to be exercised by the national government[.]”[85] Of note is the
Court’s pronouncement in Pimentel, Jr. v. Hon. Aguirre [86] which we
quote:
Under the Philippine concept of local
autonomy, the national government has not
completely relinquished all its powers over local
governments, including autonomous regions.  Only
administrative powers over local affairs are
delegated to political subdivisions.  The purpose of
the delegation is to make governance more directly
responsive and effective at the local levels.  In turn,
economic, political and social development at the
smaller political units are expected to propel social
and economic growth and development.  But to
enable the country to develop as a whole, the
programs and policies effected locally must be
integrated and coordinated towards a common
36
 national goal.  Thus, policy-setting for the entire theory is that as the joint act of Congress and the
country still lies in the President and President of the Philippines, a law has been
Congress. [Emphasis ours.] carefully studied and determined to be in
  accordance with the fundamental law before it
In other words, the autonomy granted to the ARMM cannot was finally enacted.[95] [Emphasis ours.]
be invoked to defeat national policies and concerns. Since the  
synchronization of elections is not just a regional concern but a national Given the failure of the petitioners to rebut the presumption
one, the ARMM is subject to it; the regional autonomy granted to the of constitutionality in favor of RA No. 10153, we must support and
ARMM cannot be used to exempt the region from having to act in confirm its validity.
accordance with a national policy mandated by no less than the WHEREFORE, premises considered, we DISMISS the
Constitution.  consolidated petitions assailing the validity of RA No. 10153 for lack of
  merit, and UPHOLD the constitutionality of this law.  We
  likewise LIFT the temporary restraining order we issued in our
Conclusion Resolution of September 13, 2011.  No costs.
   
Congress acted within its powers and pursuant to a SO ORDERED.
constitutional mandate – the synchronization of national and local
elections – when it enacted RA No. 10153.  This Court cannot question
the manner by which Congress undertook this task; the Judiciary does
not and cannot pass upon questions of wisdom, justice or expediency of
legislation.[87] As judges, we can only interpret and apply the law and,
despite our doubts about its wisdom, cannot repeal or amend it. [88]
 
Nor can the Court presume to dictate the means by which
Congress should address what is essentially a legislative problem. It is
not within the Court’s power to enlarge or abridge laws; otherwise, the
Court will be guilty of usurping the exclusive prerogative of Congress.
[89]
 The petitioners, in asking this Court to compel COMELEC to hold
special elections despite its lack of authority to do so, are essentially
asking us to venture into the realm of judicial legislation, which is
abhorrent to one of the most basic principles of a republican and
democratic government – the separation of powers. 
 
The petitioners allege, too, that we should act because
Congress acted with grave abuse of discretion in enacting RA No. 10153.
Grave abuse of discretion is such capricious and whimsical exercise of
judgment that is patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law or
to act at all in contemplation of the law as where the power is exercised
in an arbitrary and despotic manner by reason of passion and hostility.
[90]
 
 
We find that Congress, in passing RA No. 10153, acted strictly
within its constitutional mandate. Given an array of choices, it acted
within due constitutional bounds and with marked reasonableness in
light of the necessary adjustments that synchronization demands.
Congress, therefore, cannot be accused of any evasion of a positive duty
or of a refusal to perform its duty.  We thus find no reason to accord
merit to the petitioners’ claims of grave abuse of discretion.
 
On the general claim that RA No. 10153 is unconstitutional,
we can only reiterate the established rule that every statute is presumed
valid.[91] Congress, thus, has in its favor the presumption of
constitutionality of its acts, and the party challenging the validity of a
statute has the onerous task of rebutting this presumption. [92] Any
reasonable doubt about the validity of the law should be resolved in
favor of its constitutionality. [93] As this Court declared in Garcia v.
Executive Secretary:[94]
 
The policy of the courts is to avoid ruling EN BANC
on constitutional questions and to presume that [G.R. No. 157013. July 10, 2003]
the acts of the political departments are valid in the ATTY. ROMULO B. MACALINTAL, petitioner, vs.  COMMISSION ON
absence of a clear and unmistakable showing to the ELECTIONS, HON. ALBERTO ROMULO, in his official capacity
contrary.  To doubt is to sustain.  This presumption as Executive Secretary, and HON. EMILIA T. BONCODIN,
is based on the doctrine of separation of powers Secretary of the Department of Budget and
which enjoins upon each department a becoming Management, respondents.
respect for the acts of the other departments.  The DECISION
37
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by
Romulo B. Macalintal, a member of the Philippine Bar, seeking a
declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003)[1] suffer from constitutional
infirmity. Claiming that he has actual and 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 petition
as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present
petition.
R.A. No. 9189, entitled, “An Act Providing for A System of
Overseas Absentee Voting by Qualified Citizens of the Philippines
Abroad, Appropriating Funds Therefor, and for Other
Purposes,”  appropriates funds under Section 29 thereof which provides
that a supplemental budget on the General Appropriations Act of the
year of its enactment into law shall provide for the necessary amount to
carry 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 law appropriating public funds [3] because
expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such
funds.[4]
The challenged provision of law involves a public right that affects
a great number of citizens. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner has seriously and
convincingly presented an issue of transcendental significance to the
Filipino people.  This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, [5] where the
Court held:
Objections to taxpayers’ suit for lack of sufficient personality standing, 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
Court’s duty, under the 1987 Constitution, to determine whether or not
the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities
of procedure and has taken cognizance of these petitions. [6]
Indeed, in this case, the Court may set aside procedural rules as
the constitutional right of suffrage of a considerable number of Filipinos
is involved.
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, board or before a government official
exercising judicial, quasi-judicial or ministerial functions as required by
Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner.  In Tañada vs. Angara,
[7]
 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. “The question
thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld.”
Once a “controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide.”
In another case of paramount impact to the Filipino people, it has been
expressed that it is illogical to await the adverse consequences of the
law in order to consider the controversy actual and ripe for judicial
resolution.[8]  In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted
with constitutional issues, it will not hesitate to declare a law or act
invalid when it is convinced that this must be done. In arriving at this
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
purpose. Personal motives and political considerations are irrelevancies
that cannot influence its decisions. Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive,
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]
The need to consider the constitutional issues raised before the
Court is further buttressed by the fact that it is now more than fifteen
years since the ratification of the 1987 Constitution requiring Congress
to provide a system for absentee voting by qualified Filipinos
abroad.  Thus, strong reasons of public policy demand that the Court
resolves the instant petition [10] and determine whether Congress has
acted within the limits of the Constitution or if it had gravely abused the
discretion entrusted to it.[11]
The petitioner raises three principal questions:
A.      Does Section 5(d) of Rep. Act No. 9189 allowing the
registration of voters who are immigrants or permanent
residents in other countries by their mere act of executing
an affidavit expressing their intention to return to the
Philippines, violate the residency requirement in Section 1
of Article V of the Constitution?
B.      Does Section 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for national
offices and party list representatives including the President
and the Vice-President violate the constitutional mandate
under Section 4, Article VII of the Constitution that the
winning candidates for President and the Vice-President
shall be proclaimed as winners by Congress?
C.      May Congress, through the Joint Congressional
Oversight Committee created in Section 25 of Rep. Act No.
9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the
Commission on Elections shall promulgate without violating
the independence of the COMELEC under Section 1, Article
IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A.                Does Section 5(d) of Rep. Act No. 9189 violate Section 1,
Article V of the 1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5.  Disqualifications. – The following shall be disqualified from
voting under this Act:
. . .     . . .       . . .
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
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 name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to
vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates
Section 1, Article V of the 1987 Constitution which requires that the
voter must be a resident in the Philippines for at least one year and in
the place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs.
Court of Appeals[12]  to support his claim.  In that case, the Court held
that a “green card” holder immigrant to the United States is deemed to
have abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a promise by a
voter to perform a condition to 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 suffrage by providing a
38
condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote. [14]  He claims
that the right of suffrage should not be granted to anyone who, on the
date of the election, does not possess the qualifications provided for by
Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue. [15]
 
In compliance with the Resolution of the Court, the Solicitor
General filed his comment for all public respondents.  He contraposes
that the constitutional 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 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 constitutional
limitations;  the legislature intended to enact a valid, sensible, and just
law.
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 1973 Constitutions.  Thus, he cites Co vs. Electoral
Tribunal of the House of Representatives[16] wherein the Court held that
the term “residence” has been understood to be synonymous with
“domicile” under both Constitutions.  He 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
definition and meaning given to the term residence likewise applies to
absentee voters.  Invoking Romualdez-Marcos vs. COMELEC[18] which
reiterates the Court’s ruling in Faypon vs. Quirino,[19] the Solicitor
General maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their Philippine
domicile.[20]
Taking issue with the petitioner’s contention that “green card”
holders are considered to have abandoned their Philippine domicile, the
Solicitor General suggests that the Court may have to discard its ruling
in Caasi vs. Court of Appeals[21]  in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of  R.A. No.
9189.  He maintains that through the execution of the requisite
affidavits, the Congress of the Philippines with the concurrence of the
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 manifest that they had in fact never abandoned
their Philippine domicile; that indubitably, they would have formally and
categorically expressed the requisite intentions, i.e., “animus
manendi” and “animus revertendi;” that Filipino immigrants and
permanent residents abroad possess the unquestionable right to
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]
The seed of the present controversy is the interpretation that is
given to the phrase, “qualified citizens of the Philippines abroad” as it
appears in R.A. No. 9189, to wit:
SEC. 2.  Declaration of Policy. – It is the prime duty of the State to
provide a system of honest and orderly overseas absentee voting that
upholds the secrecy and sanctity of the ballot.  Towards this end, the
State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
SEC. 3.  Definition of Terms. – For purposes of this Act:
a)      “Absentee Voting” refers to the process by which qualified citizens
of the Philippines abroad, exercise their right to vote;
. . .  (Emphasis supplied)
f)       “Overseas Absentee Voter” refers to a citizen of the Philippines
who is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections.  (Emphasis
supplied)
SEC. 4.  Coverage. – All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
party-list representatives.  (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1.  Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months
immediately preceding the election.  No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2.  The Congress shall provide a system for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.
. . .     . . .       . . . (Emphasis supplied)
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 by law, (3) at least eighteen years of age, (4) who
are residents in the Philippines for at least one year and in the place
where they propose to vote for at least six 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 resident
who is recognized as such in the host country unless he/she executes an
affidavit declaring that he/she shall resume actual physical permanent
residence in the Philippines not later than three years from approval of
his/her registration under said Act. 
Petitioner questions the rightness of the mere act of execution of
an affidavit to qualify the Filipinos abroad who are immigrants or
permanent residents, to vote.  He focuses solely on Section 1, Article V
of the Constitution in ascribing constitutional infirmity to Section 5(d) of
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by qualified Filipinos
abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may
indeed give the impression that it contravenes Section 1, Article V of the
Constitution. Filipino immigrants and permanent residents overseas are
perceived as having left and abandoned the Philippines to live
permanently in their host countries and therefore, a provision in the law
enfranchising those who do not possess the residency requirement of
the Constitution by the mere act of executing an affidavit expressing
their intent to return to the Philippines within a given period, risks a
declaration of unconstitutionality.  However, the risk is more apparent
than real. 
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 be determined and all public authority
administered.[23] Laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.
Generally, however, all laws are presumed to be
constitutional.  In Peralta vs. COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed to
be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well.
The question of the validity of every statute is first determined by the
legislative department of the government itself.[24]
Thus, presumption of constitutionality of a law must be overcome
convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the
Constitution must be clear and unequivocal, for even if a law is aimed at
the attainment of some public good, no infringement of constitutional
rights is allowed. To strike down a law there must be a clear showing
that what the fundamental law condemns or prohibits, the statute
allows it to be done.[25]
As the essence of R.A. No. 9189 is to enfranchise overseas
qualified Filipinos, it behooves the Court to take a holistic view of the
pertinent provisions of both the Constitution and R.A. No. 9189.  It is a
basic rule in constitutional construction that the Constitution should be
construed as a whole.  In Chiongbian vs. De Leon,[26] the Court held that a
constitutional provision should function to the full extent of its
39
substance and its terms, not by itself alone, but in conjunction with all
other provisions of that great document.  Constitutional provisions are
mandatory in character unless, either by express statement or by
necessary 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 ambiguous, the Court may consider the
intent of its framers through their debates in the constitutional
convention.[28]
R.A. No. 9189 was enacted in obeisance to the mandate of the
first paragraph of Section 2, Article V of the Constitution that Congress
shall provide a system for voting by qualified Filipinos abroad.  It must be
stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law.  Hence, in the
absence of restrictions, Congress is presumed to have duly exercised its
function as defined in Article VI (The Legislative Department) of the
Constitution.
To put matters in their right perspective, it is necessary to dwell
first on the significance of absentee voting.  The concept of absentee
voting is relatively new.  It is viewed thus:
The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a
new and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of
absentee and disabled voters to cast their ballots at an election is  purely
statutory; absentee voting was unknown to, and not recognized at, the
common law.
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil life
whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting may
flow from constitutional provisions  or be conferred by statutes, existing
in some jurisdictions, which provide in varying terms for the casting and
reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or
an absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it is
granted; but statutes of this nature may be limited in their application
to particular types of elections. The statutes should be construed in  the
light of any constitutional provisions affecting registration and
elections, and with due regard to their texts prior to amendment and to
predecessor statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if this can be done
without doing violence to their provisions and mandates. Further, in
passing on statutes regulating absentee voting, the court should look
to the whole and every part of the election laws, the intent of the
entire plan, and reasons and spirit of their adoption, and try to give
effect to every portion thereof.[29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person
cannot be at the same time, both a resident and an absentee.
[30]
 However, under our election laws and the countless pronouncements
of the Court pertaining to elections, an absentee remains attached to
his residence in the Philippines as residence is considered
synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:
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 persons is
their place of habitual residence.”  In Ong vs. Republic,  this court took
the concept of domicile to mean an individual’s “permanent home,” “a
place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the sense
that they disclose intent.”  Based on the foregoing, domicile includes the
twin elements of “the fact of residing or physical presence in a fixed
place” and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place.  It is the physical presence of a person in
a given area, community or country.  The essential distinction between
residence and domicile in law is that residence involves the intent to
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
health.  If a person’s intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. It is
thus, quite perfectly normal for an individual to have different
residences in various places.  However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice.  In Uytengsu vs.
Republic, we laid this distinction quite clearly:
“There is a difference between domicile and residence.  ‘Residence’ is
used to indicate a place of abode, whether permanent or temporary;
‘domicile’ denotes a fixed permanent residence to which, when absent,
one has the  intention of returning.  A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile
is residence coupled with the intention to remain for an unlimited time. A
man can have but one domicile for the same purpose at any time, but he
may have numerous places of residence. His place of residence is
generally his place of domicile, but it is not by any means necessarily so
since no length of residence without intention of remaining will
constitute domicile.”
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws.  As these concepts have
evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile.[32]    (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to
his residence in this country, the framers of the Constitution considered
the circumstances that impelled them to require Congress to establish a
system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of
several government agencies, there ought to be about two million such
Filipinos at this time. Commissioner Bernas had earlier pointed out that
these provisions are really lifted from the two previous Constitutions of
1935 and 1973, with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon now described as
the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East,
they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions
and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective
the right of suffrage for Filipinos overseas.  Those who have adhered to
their Filipino citizenship notwithstanding strong temptations are
exposed to embrace a more convenient foreign citizenship. And those
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
countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no
intention of changing their residence on a permanent basis, but are
technically disqualified from exercising the right of suffrage in their
countries of destination by the residential requirement in Section 1
which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months preceding the
election.
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
40
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that.  But more than
just saying that, I would like to make a comment on the meaning of
“residence” in the Constitution because I think it is a concept that has
been discussed in various decisions of the Supreme Court, particularly in
the case of Faypon vs. Quirino, a 1954 case which dealt precisely with
the meaning of “residence” in the Election Law.  Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as
the saying goes, to improve his lot and that, of course, includes study in
other places, practice of his avocation, reengaging in business.  When an
election is to be held, the citizen who left his birthplace to improve his
lot may decide to return to his native town, to cast his ballot, but for
professional or business reasons, or for any other reason, he may not
absent himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be
one, and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national
elections.  Despite such registration, the animus revertendi to his home,
to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place
other than his residence of origin has not been deemed sufficient to
consider abandonment or loss of such residence of origin.
In other words, “residence” in this provision refers to two residence
qualifications: “residence” in the Philippines and “residence” in the place
where he will vote. As far as residence in the Philippines is concerned,
the word “residence” means domicile, but as far as residence in the
place where he will actually cast his ballot is concerned, the meaning
seems to be different.  He could have a domicile somewhere else and
yet he is a resident of a place for six months and he is allowed to vote
there. So that there may be serious constitutional obstacles to 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.
MR. OPLE.  Thank you for citing the jurisprudence.
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
overseas Filipino communities.  The Committee, of course, is aware that
when this Article of the Constitution explicitly and unequivocally extends
the right of effective suffrage to Filipinos abroad, this will call for a
logistical exercise of global proportions.  In effect, this will require
budgetary and administrative commitments on the part of the Philippine
government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism
that will be put in place to make effective the right to
vote.  Therefore, seeking shelter in some wise jurisprudence of the past
may not be sufficient to meet the demands of the right of suffrage for
Filipinos abroad that I have mentioned.  But I want to thank the
Committee for saying that an amendment to this effect may be
entertained at the proper time.  . . .     . . .     . . .
 [33] (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that
while millions of Filipinos reside abroad principally for economic reasons
and hence they contribute in no small measure to the economic uplift of
this country, their voices are marginal insofar as the choice of this
country’s leaders is concerned.
The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee voting in
this jurisdiction, vesting overseas Filipinos with the right to vote would
spawn constitutional problems especially because the Constitution itself
provides for the residency requirement of voters:
MR. REGALADO.  Before I act on that, may I inquire from Commissioner
Monsod if the term “absentee voting” also includes transient voting;
meaning, those who are, let us say, studying in Manila need not go back
to their places of registration, for instance, in Mindanao, to cast their
votes.
MR. MONSOD.  I think our provision is for absentee voting by Filipinos
abroad.
MR. REGALADO.  How about those people who cannot go back to the
places where they are registered?
MR. MONSOD.  Under the present Election Code, there are provisions
for allowing students and military people who are temporarily in
another place to register and vote. I believe that those situations can be
covered by the Omnibus Election Code. The reason we want absentee
voting to be in the Constitution as a mandate to the legislature is that
there could be inconsistency on the residence rule if it is just a question
of legislation by Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the rest.[34] (Emphasis
supplied)
Thus, Section 2, Article V of the Constitution came into being to remove
any doubt as to the inapplicability of the residency requirement in
Section 1.  It is precisely to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest number of
qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for
overseas absentee voting.
The discussion of the Constitutional Commission on the effect of
the residency requirement prescribed by Section 1, Article V of the
Constitution on the proposed system of absentee voting for qualified
Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are
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
they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of
the exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
THE PRESIDENT.  Would Commissioner Monsod care to answer?
MR. MONSOD.  I believe the answer was already given by Commissioner
Bernas, that the domicile requirements as well as the qualifications and
disqualifications would be the same.
THE PRESIDENT.  Are we leaving it to the legislature to devise the
system?
FR. BERNAS.  I think there is a very legitimate problem raised there.
THE PRESIDENT.  Yes.
MR. BENGZON.  I believe Commissioner Suarez is clarified.
FR. BERNAS.  But I think it should be further clarified with regard to the
residence requirement or the place where they vote in practice; the
understanding is that it is flexible.  For instance, one might be a resident
of Naga or domiciled therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON.  Madam President, may I then suggest to the Committee
to change the word “Filipinos” to QUALIFIED FILIPINO VOTERS. Instead
of “VOTING BY FILIPINOS ABROAD,” it should be QUALIFIED FILIPINO
VOTERS.  If the Committee wants QUALIFIED VOTERS LIVING ABROAD,
would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase
“QUALIFIED FILIPINOS ABROAD” because “QUALIFIED” would assume
that he has the qualifications and none of the disqualifications to vote.
MR. TINGSON.  That is right. So does the Committee accept?
FR. BERNAS.  “QUALIFIED FILIPINOS ABROAD”?
THE PRESIDENT.  Does the Committee accept the amendment?
MR. REGALADO.  Madam President.
THE PRESIDENT.  Commissioner Regalado is recognized.
MR. REGALADO.  When Commissioner Bengzon asked me to read my
proposed amendment, I specifically stated that the National Assembly
shall prescribe a system which will enable qualified citizens, temporarily
absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase “absentee voting” already took that into
account as its meaning.  That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD.  Yes, we accepted that. I would like to say that with
respect to registration we will leave it up to the legislative assembly, for
example, to require where the registration is.  If it is, say, members of
41
the diplomatic corps who may be continuously abroad for a long time,
perhaps, there can be a system of registration in the
embassies.  However, we do not like to preempt the legislative
assembly.
THE PRESIDENT.  Just to clarify, Commissioner Monsod’s amendment is
only to provide a system.
MR. MONSOD.  Yes.
THE PRESIDENT.  The Commissioner is not stating here that he wants
new qualifications for these absentee voters.
MR. MONSOD.  That is right.  They must have the qualifications and
none of the disqualifications.
THE PRESIDENT.  It is just to devise a system by which they can vote.
MR. MONSOD.  That is right, Madam President.[35]  (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is
to entrust to Congress the responsibility of devising a system of
absentee voting.  The qualifications of voters as stated in Section 1 shall
remain except for the residency requirement. This is in fact the reason
why the Constitutional Commission opted for the term qualified 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 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
Constitutional Commission discussed how the system should work:
MR. SUAREZ.  For clarification purposes, we just want to state for the
record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the
Philippines.  So as to avoid any complications, for example, if they are
registered in Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then
he can vote only for the local and national candidates in Angeles City.  I
just want to make that clear for the record.
MR. REGALADO.  Madam President.
THE PRESIDENT.  What does Commissioner Regalado say?
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 to
fly to the United States, so he could not cast his vote.
He is temporarily abroad, but not residing there.  He
stays in a hotel for two days and comes back.  This is
not limited only to Filipinos temporarily residing
abroad. But as long as he is temporarily abroad on
the date of the elections, then he can fall within the
prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further
clarification. Precisely, we need this clarification on
record.
MR. MONSOD.  Madam President, to clarify what we mean
by “temporarily abroad,” it need not be on very
short trips. One can be abroad on a treaty traders
visa. Therefore, when we talk about registration, it is
possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles,
but Congress or the Assembly may provide the
procedure for registration, like listing one’s name, in
a registry list in the embassy abroad. That is still
possible under the system.
FR. BERNAS. Madam President, just one clarification if
Commissioner Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic
officer who reaches the voting age while living abroad
and he has never registered here. Where will he
register? Will he be a registered voter of a certain
locality in the Philippines?
MR. MONSOD.  Yes, it is possible that the system will enable
that child to comply with the registration
requirements in an embassy in the United States and
his name is then entered in the official registration
book in Angeles City, for instance.
FR. BERNAS.  In other words, he is not a registered voter of
Los Angeles, but a registered voter of a locality here.
MR. MONSOD.  That is right. He does not have to come
home to the Philippines to comply with the
registration procedure here.
FR. BERNAS.  So, he does not have to come home.
MR. BENGZON.  Madam President, the Floor Leader wishes
to inquire if there are more clarifications needed from
the body.
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)
It is clear from these discussions of the members of the
Constitutional Commission that they intended to enfranchise as much as
possible allFilipino citizens abroad who have not abandoned their
domicile of origin.  The Commission even intended to extend to young
Filipinos who reach voting age abroad whose parents’ domicile of origin
is in the Philippines, and consider them qualified as voters for the first
time.
It is in pursuance of that intention that the Commission provided
for Section 2 immediately after the residency requirement of Section
1.  By the doctrine of necessary implication in statutory construction,
which may be applied in construing constitutional provisions, [37] the
strategic location of Section 2 indicates that the Constitutional
Commission provided for an exception to the actual residency
requirement of Section 1with respect to qualified Filipinos abroad.  The
same Commission has in effect declared that qualified Filipinos who 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.
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 debate when Senate Bill No. 2104, which became R.A.
No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked
into in relation to the constitutional provisions. I think
the sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, “Suffrage.”
It says:
Section 1.  Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months
immediately preceding the election.
Now, Mr. President, the Constitution says, “who shall have
resided in the Philippines.”  They are permanent
immigrants.  They have changed 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?
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.”
As the gentleman and I know, Mr. President, “domicile” is
the intent to return to one’s home.  And the fact that
a Filipino may have been physically absent from the
42
 Philippines and may be physically a 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 Philippines under this law.
This is consistent, Mr. President, with the constitutional
mandate that we – that Congress – must provide a
franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle
literally as demanding physical presence, then there
is no way we can provide for offshore voting to our
offshore kababayan,  Mr. President.
Senator Arroyo.  Mr. President, when the Constitution says,
in Section 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 absentee voting
by qualified Filipinos abroad.”
The key to this whole exercise, Mr. President, is
“qualified.” In other words, anything that we may
do or say in granting our compatriots abroad must
be anchored on the proposition that they are
qualified. Absent the qualification, they cannot vote.
And “residents” (sic)  is a qualification.
I will lose votes here from permanent residents so-called
“green-card holders”, but the Constitution is the
Constitution.  We cannot compromise on this. The
Senate cannot be a party to something that would
affect or impair the Constitution.
Look at what the Constitution says – “In the place wherein
they propose to vote for at least six months
immediately preceding the election.”
Mr. President, all of us here have run (sic) for office.
I live in Makati.  My neighbor is Pateros where Senator
Cayetano lives. We are separated only by a creek.  But
one who votes in Makati cannot 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 Code. I am talking about the
Constitution.
As I have said, if a voter in Makati would want to vote in
Pateros, yes, he may do so. But he must do so, make
the transfer six months before the election,
otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a
fundamental difference here.
Senator Angara.  It is a good point to raise, Mr.
President.  But it is a point already well-debated even
in the constitutional commission of 1986. And the
reason Section 2 of Article V was placed immediately
after the six-month/one-year residency requirement
is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the
six-month/one-year residency requirement.  That is
the first principle, Mr. President, that one must
remember.
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 –“residency” has
been interpreted as synonymous with “domicile.”
But the third more practical reason, Mr. President, is, if we
follow the interpretation of the gentleman, then it is
legally and constitutionally impossible to give a
franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite
ridiculous because that is exactly the whole point of
this exercise – to enfranchise them and empower
them to vote.
 [38]  (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage
of the absentee voting process, to wit:
SEC. 4.  Coverage. – All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
party-list representatives.
which does not require physical residency in the Philippines;  and
Section 5 of the assailed law which enumerates those who are
disqualified, to wit:
SEC. 5.  Disqualifications. – The following shall be disqualified from
voting under this Act:
a)      Those who have lost their Filipino citizenship in accordance with
Philippine laws;
b)      Those who have expressly renounced their Philippine citizenship
and who have pledged allegiance to a foreign country;
c)      Those who have committed and are convicted in a final judgment
by a court or tribunal of an offense punishable by imprisonment of not
less than one (1) year, including those who have committed and been
found guilty of Disloyalty as defined under Article 137 of the Revised
Penal Code, such disability not having been removed by plenary pardon
or amnesty: Provided, however, That any person disqualified to vote
under this subsection shall automatically acquire the right to vote upon
expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of reciprocity and subject to
the formalities and processes prescribed by the Rules of
Court on  execution of judgments;
d)      An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this
Act.  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 name of the immigrant or permanent resident from the
National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
e)      Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189
specifically disqualifies an immigrant  or permanent resident who is
“recognized as such in the host country” because immigration or
permanent residence in another country implies renunciation of one’s
residence in his country of origin. However, same Section allows an
immigrant and permanent resident abroad to register as voter for as
long as he/she executes an affidavit to show that he/she has not
abandoned his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that “all citizens of the
Philippines not otherwise disqualified by law” must be entitled to
exercise the right of suffrage and, that Congress must establish a system
for absentee voting; for otherwise, if actual, physical residence in the
Philippines is required, there is no sense for the framers of the
Constitution to mandate Congress to establish a system for absentee
voting. 
Contrary to the claim of petitioner, the execution of the affidavit
itself is not the 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 resume residency in the Philippines,
but more significantly, it serves as an explicit expression that he had not
in fact abandoned his domicile of origin. Thus, it is not correct to say that
the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes “provisional registration or a promise by a
43
voter to perform a condition to be qualified to vote in a political
exercise.”
To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in  their host countries, they are
presumed to have relinquished their intent to return to this country;
thus, without the affidavit, the presumption of abandonment of
Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings
discloses another reason why the Senate required the execution of said
affidavit.  It wanted the affiant to exercise the option to return or to
express his intention to return to his domicile of origin and not to
preempt that choice by legislation.  Thus:
Senator Villar.  Yes, we are going back.
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
before any Philippine embassy or consulate official
authorized to administer oath…”
Mr. President, may we know the rationale of this provision?
Is the purpose of this Sworn Declaration to include
only those who have the intention of returning to be
qualified to exercise the right of suffrage? What if the
Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to
suffrage?
Senator Angara.  The rationale for this, Mr. President, is
that we want to be expansive and all-inclusive in this
law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not,
he will be authorized to vote.  But if he is already a
green-card holder, that means he has acquired
permanent residency in the United States, then he
must indicate an intention to return. This is what
makes for the definition of “domicile.”   And to
acquire the vote, we thought that we would require
the immigrants and the green-card holders . . . Mr.
President, the three administration senators are
leaving, maybe we may ask for a vote [Laughter].
Senator Villar.  For a merienda,  Mr. President.
Senator Angara.  Mr. President, going back to the business
at hand.  The 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 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 “domicile”
under the law.
But what we are trying to do here, Mr. President, is really
provide the choice to the voter.  The voter, after
consulting his lawyer or after deliberation within the
family, may decide “No, I think we are risking our
permanent status in the United States if we file an
affidavit that we want to go back.”  But we want to
give him the opportunity to make that decision. We
do not want to make that decision for him.
[39]
  (Emphasis supplied)
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 present case because the Caasi case did not, for
obvious reasons, consider the absentee voting rights of Filipinos who are
immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A.
9189, they may still be considered as a “qualified citizen of the
Philippines abroad” upon fulfillment of the requirements of registration
under the new law for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an
affidavit or a promise to “resume actual physical permanent residence in
the Philippines not later than three years from approval of his/her
registration,” the Filipinos abroad must also declare that they have not
applied for citizenship in another country.  Thus, they must return to the
Philippines; otherwise, their failure to return “shall be cause for the
removal” of their names “from the National Registry of Absentee Voters
and his/her permanent disqualification to vote in absentia.”
Thus, Congress crafted a process of registration by which a Filipino
voter permanently residing abroad who is at least eighteen years old,
not otherwise disqualified by law, who has not relinquished Philippine
citizenship  and who has not actually abandoned his/her intentions to
return to his/her domicile of origin, the Philippines, is allowed to register
and vote in the Philippine embassy, consulate or other foreign service
establishments of the place which has 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.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11.  Procedure for Application to Vote in Absentia. –
11.1.  Every qualified citizen of the Philippines abroad whose application
for registration has been approved, including those previously registered
under Republic Act No. 8189, shall, in every national election, file with
the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written
application to vote in a form prescribed by the Commission.  The
authorized officer of such embassy, consulate or other foreign service
establishment shall transmit to the Commission the said application to
vote within five (5) days from receipt thereof.  The application form shall
be accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of registration.
11.2.  Every application to vote in absentia may be done personally at, or
by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated
his/her address for purposes of the elections.
11.3.  Consular and diplomatic services rendered in connection with the
overseas absentee voting processes shall be made available at no cost to
the overseas absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of overseas
absentee voting in compliance with the constitutional mandate.  Such
mandate expressly requires that Congress provide a system
of absenteevoting  that necessarily presupposes that the “qualified
citizen of the Philippines abroad” is not physically present in the
country.  The provisions of Sections 5(d) and 11 are components of the
system of overseas absentee voting established by R.A. No. 9189.  The
qualified 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 physical absence from this country.  His having
become an immigrant or permanent resident of his host country does
not necessarily imply an abandonment of his intention to return to his
domicile of origin, the Philippines. Therefore, under the law, he must be
given the opportunity to express that he has not actually abandoned his
domicile in the Philippines by executing the affidavit required by
Sections 5(d) and 8(c) of the law.
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 election are given the
opportunity and permitted to freely do so.  The COMELEC 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. No. 9189.
As to the eventuality that the Filipino abroad would renege on his
undertaking to 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 his/her undertaking under the
affidavit.
44
 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 a ground to contest the proclamation of the
winning candidates and cause further confusion and doubt on the
integrity of the results of the election.  Indeed, the probability that after
an immigrant has exercised the right to vote, he shall opt to remain in
his host country beyond the third year from the execution of the
affidavit, is not farfetched.  However, it is not for this Court to determine
the wisdom of a legislative exercise.  As expressed in Tañada vs. Tuvera,
[40]
 the Court is not called upon to rule on the wisdom of the law or to
repeal it or modify it if we find it impractical.
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 Filipino who fails to return as promised
stands to lose his right of suffrage.  Under Section 9, should a registered
overseas absentee voter fail to vote for two consecutive national
elections, his name may be ordered removed from the National Registry
of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what
happens to the 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 who failed to return within three
years shall not be invalidated because they were qualified to vote on the
date of the elections, but their failure to return shall be cause for the
removal of the names of the immigrants or permanent residents from
the National Registry of Absentee Voters and their permanent
disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the
Court does not find Section 5(d) of R.A. No. 9189 as constitutionally
defective.
B.                Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the
same Act in contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee
voter may vote for president, vice-president, senators and party-list
representatives.
Section 18.5 of the same Act provides:
SEC. 18.  On-Site Counting and Canvassing. –
. . .     . . .       . . .
18. 5  The canvass of votes shall not cause the delay of the proclamation
of a winning candidate if the outcome of the election will not be affected
by the results thereof.  Notwithstanding the foregoing, the Commission
is empowered to order the proclamation of winning candidates despite
the fact that the scheduled election has not taken place in a particular
country or countries, if the holding of elections therein has been
rendered impossible by events, factors and circumstances peculiar to
such country or countries, in which events, factors and circumstances
are beyond the control or influence of the Commission.  (Emphasis
supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No.
9189 empowering the COMELEC to order the proclamation of winning
candidates insofar as it affects the canvass of votes and proclamation of
winning candidates for president and vice-president, is unconstitutional
because it violates the following provisions of paragraph 4, Section 4 of
Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the
Senate.  Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open
all the 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
manner provided by law, canvass the votes.
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
of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the
winning candidates for president and vice-president.
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 mean that COMELEC can only proclaim the
winning Senators and party-list representatives but not the President
and Vice-President.[41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in
Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily
includes the proclamation of the winning candidates for the presidency
and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section
4, Article VII of the Constitution only insofar as said Section totally
disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice-
president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4.  . . .  Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via facsimile,
electronic mail, or any other means of transmission equally safe and
reliable the Certificates of Canvass and the Statements of Votes to the
Commission,  . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution  which
provides that the returns of every election for President and Vice-
President shall be certified by the board of canvassers to Congress.
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 power of Congress to canvass the votes for president
and vice-president and the power to proclaim the winners for the said
positions.”  The provisions of the 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 and the proclamation of the
winning candidates for president and vice-president 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?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate
Article IX-A (Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent,
are the Civil Service Commission, the Commission on Elections, and the
Commission on Audit.  (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight
Committee with the power to review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the COMELEC, R.A.
No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under 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 promulgated
by the COMELEC violate any law, it is the Court that has the power to
review the same via the petition of any interested party, including the
legislators.
It is only on this question that respondent COMELEC submitted its
Comment.  It 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 unconstitutionality of said Sections upon
Section 1, Article IX-A of the Constitution providing for the
independence of the constitutional commissions such as the
COMELEC.  It asserts that its power to formulate rules and regulations
has been upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held that
the power of the COMELEC to formulate rules and regulations is implicit
45
in its power to implement regulations under Section 2(1) of Article IX-
C[43] of the Constitution. COMELEC joins the petitioner in asserting that
as an independent constitutional body, it may not be subject to
interference by any government instrumentality and that only this Court
may review COMELEC rules and only in cases of grave abuse of
discretion.
The COMELEC adds, however, that another provision, vis-à-vis  its
rule-making power, to wit:
SEC. 17.  Voting by Mail. –
17.1.  For the May, 2004 elections, the Commission shall authorize
voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee.  Voting by mail
may be allowed in countries that satisfy the following conditions:
a)           Where the mailing system is fairly well-developed and secure to
prevent occasion for fraud;
b)           Where there exists a technically established identification
system that would preclude multiple or proxy voting; and
c)           Where the system of reception and custody of mailed ballots in
the embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon
review and approval of the Joint Congressional Oversight Committee.
. . .     . . .       . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A
mandating the independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement
that the constitutional challenge must fail and agrees with the petitioner
that Sections 19 and 25 are invalid and unconstitutional on the ground
that there is nothing in Article VI of the Constitution on Legislative
Department that would as much as imply that Congress has concurrent
power to enforce and administer election 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.
The parties are unanimous in claiming that Sections 19, 25 and
portions of Section 17.1 are unconstitutional.  Thus, there is no actual
issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of
Congress through the Joint Congressional Oversight Committee
(JCOC) vis-à-vis the independence of the COMELEC, as a constitutional
body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. – A Joint
Congressional Oversight Committee is hereby created, composed of the
Chairman of the Senate Committee on Constitutional Amendments,
Revision of Codes and Laws, and seven (7) other Senators designated by
the Senate President, and the Chairman of the House Committee on
Suffrage and Electoral Reforms, and seven (7) other Members of the
House of Representatives designated by the Speaker of the House of
Representatives: Provided,  That, of the seven (7) members to be
designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.
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 Regulations
promulgated by the Commission.  (Emphasis supplied)
SEC. 19.  Authority of the Commission to Promulgate Rules. – The
Commission shall issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty (60) days from the
effectivity of this Act.  The Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee created by
virtue of this Act for prior approval.
. . .     . . .       . . .  (Emphasis supplied)
Composed of Senators and Members of the House of Representatives,
the Joint Congressional Oversight Committee (JCOC) is a purely
legislative body.  There is no question that the authority of Congress to
“monitor and evaluate the implementation” of R.A. No. 9189 is geared
towards possible amendments or revision of the law itself and thus, may
be performed in aid of its legislation.
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 COMELEC [Sections 25 and 19]; and (b) subject
to the approval of the JCOC [Section 17.1], the voting by mail in not
more than three countries for the May 2004 elections and in any
country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution
is circumscribed by other constitutional provisions.  One such provision
is Section 1 of Article IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC shall be
“independent.”
Interpreting Section 1, Article X of the 1935 Constitution providing
that there shall be an independent  COMELEC, the Court has held that
“[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government.” [44] In an
earlier case, the Court elucidated:
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
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization.  The Commission may err, so may this court also. It should
be allowed considerable latitude in devising means and methods that
will insure the accomplishment of the great objective for which it was
created – free, orderly and honest elections.  We may not agree fully
with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt with realistically –
not from the standpoint of pure theory.  The Commission on Elections,
because of its fact-finding facilities, its contacts with political strategists,
and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions.
 [45]  (Emphasis supplied)
The Court has no general powers of supervision over COMELEC
which is an independent body “except those specifically granted by the
Constitution,” that is, to review its decisions, orders and rulings. [46]  In
the same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may intrude
into the independence of the COMELEC by exercising supervisory
powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered
the COMELEC to “issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the
effectivity of this Act.”  This provision of law follows the usual procedure
in drafting rules and regulations to implement a law – the legislature
grants an administrative agency the authority to craft the rules and
regulations implementing the law it has 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 legislative
function is deemed accomplished and complete.  The legislative function
may spring back to Congress relative to the same law only if that body
deems it proper to review, amend and revise the law, but certainly not
to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and
revise the IRR for The  Overseas Absentee Voting Act of 2003, Congress
went beyond the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but to
withdraw from its usual reticence in declaring a provision of law
unconstitutional.
The second sentence of the first paragraph of Section 19 stating
that “[t]he Implementing Rules and Regulations shall be submitted to
the Joint Congressional Oversight Committee created by virtue of this
46
Act for prior approval,” and the second sentence of the second
paragraph of Section 25 stating that “[i]t shall review, revise, amend and
approve the Implementing Rules and Regulations promulgated by the
Commission,” whereby Congress, in both provisions, arrogates unto
itself a function not specifically vested by the Constitution, should be
stricken out of the subject statute for constitutional infirmity.  Both
provisions brazenly violate the mandate on the independence of the
COMELEC.
Similarly, the phrase, “subject to the approval of the
Congressional Oversight Committee” in the first sentence of Section 17.1
which empowers the Commission to authorize voting by mail in not
more than three countries for the 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 section are
unconstitutional as they require review and approval of voting by mail in
any country after the 2004 elections.  Congress may not confer upon
itself the authority to approve or disapprove the countries wherein
voting by mail shall be allowed, as determined by the COMELEC
pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189.
[48]
  Otherwise, Congress would overstep the bounds of its constitutional
mandate and intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to
adopt the separate opinion of Justice Reynato S. Puno as part of the
ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and the powers given
to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED.  The following
portions of R.A. No. 9189 are declared VOID for being
UNCONSTITUTIONAL:
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 Committee;”
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.
SO ORDERED. Republic of the Philippines
Supreme Court
Manila
---
 
EN BANC
 
ROMULO L. NERI, G.R. No. 180643
Petitioner,  
  Present:
   
47
                     - versus - PUNO, C.J., Commerce,[2]  and National Defense and Security (collectively the
  QUISUMBING, “respondent Committees”).[3] 
  YNARES-  
SENATE COMMITTEE ON ACCOUNTABILITY SANTIAGO,           A brief review of the facts is imperative.
OF PUBLIC OFFICERS AND CARPIO,  
INVESTIGATIONS, SENATE COMMITTEE ON AUSTRIA-           On September 26, 2007, petitioner appeared before respondent
TRADE AND COMMERCE, AND SENATE MARTINEZ, Committees and testified for about eleven (11) hours on matters
COMMITTEE ON NATIONAL DEFENSE AND CORONA, concerning the National Broadband Project (the “NBN Project”), a
SECURITY, CARPIO project awarded by the Department of Transportation and
Respondents. MORALES, Communications (“DOTC”) to Zhong Xing Telecommunications
AZCUNA, Equipment (“ZTE”). Petitioner disclosed that then Commission on
TINGA,  Elections (“COMELEC”) Chairman Benjamin Abalos offered him P200
CHICO-NAZARIO, Million in exchange for his approval of the NBN Project. He further
VELASCO, JR., narrated that he informed President Gloria Macapagal Arroyo
NACHURA, (“President Arroyo”) of the bribery attempt and that she instructed him
REYES, not to accept the bribe.  However, when probed further on President
LEONARDO-DE Arroyo and petitioner’s discussions relating to the NBN Project,
CASTRO, and petitioner refused to answer, invoking “executive privilege.” To be
BRION, JJ. specific,  petitioner refused to answer questions on: (a) whether or not
  President Arroyo followed up the NBN Project, [4] (b) whether or not she
Promulgated: directed him to prioritize it, [5] and(c) whether or not she directed him to
  approve it.[6]
September 4,  
2008           Respondent Committees persisted in knowing petitioner’s answers
  to these three questions by requiring him to appear and testify once
x----------------------------------------------------------------------------------------------- more on November 20, 2007.  On November 15, 2007, Executive
----------------x Secretary Eduardo R. Ermita wrote to respondent Committees and
  requested them to dispense with petitioner’s testimony on the ground
RESOLUTION of executive privilege.[7]  The letter of Executive Secretary Ermita
  pertinently stated:
   
LEONARDO-DE CASTRO, J.:             Following the ruling in Senate v. Ermita, the
  foregoing questions fall under conversations and
Executive privilege is not a personal privilege, but one that correspondence between the President and public
adheres to the Office of the President.  It exists to protect public officials which are considered executive privilege
interest, not to benefit a particular public official.  Its purpose, among (Almonte v. Vasquez, G.R. 95637, 23 May
others, is to assure that the nation will receive the benefit of candid, 1995; Chavez v. PEA, G.R. 133250, July 9,
objective and untrammeled communication and exchange of 2002).  Maintaining the confidentiality of
information between the President and his/her advisers in the process conversations of the President is necessary in the
of shaping or forming policies and arriving at decisions in the exercise of exercise of her executive and policy decision
the functions of the Presidency under the Constitution. The making process.  The expectation of a President to
confidentiality of the President’s conversations and correspondence is the confidentiality of her conversations and
not unique. It is akin to the confidentiality of judicial deliberations. It correspondences, like the value which we accord
possesses the same value as the right to privacy of all citizens and more, deference for the privacy of all citizens, is the
because it is dictated by public interest and the constitutionally ordained necessity for protection of the public interest in
separation of governmental powers.  candid, objective, and even blunt or harsh opinions
  in Presidential decision-making. Disclosure of
In these proceedings, this Court has been called upon to conversations of the President will have a chilling
exercise its power of review and arbitrate a hotly, even acrimoniously, effect on the President, and will hamper her in the
debated dispute between the Court’s co-equal branches of government. effective discharge of her duties and
In this task, this Court should neither curb the legitimate powers of any responsibilities, if she is not protected by the
of the co-equal and coordinate branches of government nor allow any of confidentiality of her conversations.
them to overstep the boundaries set for it by our Constitution. The  
competing interests in the case at bar are the claim of executive             The context in which executive privilege is
privilege by the President, on the one hand, and the respondent Senate being invoked is that the information sought to be
Committees’ assertion of their power to conduct legislative inquiries, on disclosed might impair our diplomatic as well as
the other. The particular facts and circumstances of the present case, economic relations with the People’s Republic
stripped of the politically and emotionally charged rhetoric from both of China.  Given the confidential nature in which
sides and viewed in the light of settled constitutional and legal doctrines, these information were conveyed to the President,
plainly lead to the conclusion that the claim of executive privilege must he cannot provide the Committee any further
be upheld.  details of these conversations, without disclosing
  the very thing the privilege is designed to protect.
          Assailed in this motion for reconsideration is our Decision dated  
March 25, 2008 (the “Decision”), granting the petition forcertiorari filed             In light of the above considerations, this
by petitioner Romulo L. Neri against the respondent Senate Committees Office is constrained to invoke the settled doctrine
on Accountability of Public Officers and Investigations, [1] Trade and of executive privilege as refined in Senate v. Ermita,
and has advised Secretary Neri accordingly.
48
   their inquiry was not in accordance with the “duly published rules of
            Considering that Sec. Neri has been lengthily procedure,” and (e) they issued the contempt order arbitrarily and
interrogated on the subject in an unprecedented precipitately.
11-hour hearing, wherein he has answered all  
questions propounded to him except the foregoing  
questions involving executive privilege, we  
therefore request that his testimony on 20  
November 2007 on the ZTE / NBN project be  
dispensed with.  
   
  On April 8, 2008, respondent Committees filed the present
          On November 20, 2007, petitioner did not appear before motion for reconsideration, anchored on the following grounds:
respondent Committees upon orders of the President invoking executive  
privilege.  On November 22, 2007, the respondent Committees issued I
the show-cause letter requiring him to explain why he should not be CONTRARY TO THIS HONORABLE COURT’S
cited in contempt.  On November 29, 2007, in petitioner’s reply to DECISION, THERE IS NO DOUBT THAT THE
respondent Committees, he manifested that it was not his intention to ASSAILED ORDERS WERE ISSUED BY RESPONDENT
ignore the Senate hearing and that he thought the only remaining COMMITTEES PURSUANT TO THE EXERCISE OF
questions were those he claimed to be covered by executive THEIR LEGISLATIVE POWER, AND NOT MERELY
privilege.  He also manifested his willingness to appear and testify THEIR OVERSIGHT FUNCTIONS.
should there be new matters to be taken up. He just requested that he  
be furnished “in advance as to what else” he “needs to clarify.” II
                                                CONTRARY TO THIS HONORABLE COURT’S
Respondent Committees found petitioner’s explanations DECISION, THERE CAN BE NO PRESUMPTION THAT
unsatisfactory.  Without responding to his request for advance notice of THEINFORMATION WITHHELD IN THE INSTANT
the matters that he should still clarify, they issued the Order dated CASE IS PRIVILEGED.
January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege  
speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), III
citing petitioner in contempt of respondent Committees and ordering his CONTRARY TO THIS HONORABLE COURT’S
arrest and detention at the Office of the Senate Sergeant-at-Arms until DECISION, THERE IS NO FACTUAL OR LEGAL BASIS
such time that he would appear and give his testimony. TO HOLD THAT THE COMMUNICATIONS ELICITED
  BY THE SUBJECT THREE (3) QUESTIONS ARE
On the same date, petitioner moved for the reconsideration COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING
of the above Order.[8]  He insisted that he had not shown “any THAT:
contemptible conduct worthy of contempt and arrest.”  He emphasized  
his willingness to testify on new matters, but respondent Committees A.     THERE IS NO SHOWING THAT THE MATTERS
did not respond to his request for advance notice of questions.  He also FOR WHICH EXECUTIVE PRIVILEGE IS
mentioned the petition for certiorari  he previously filed with this Court CLAIMED CONSTITUTE STATE SECRETS.
on December 7, 2007.  According to him, this should restrain respondent  
Committees from enforcing the order dated January 30, 2008 which B.     EVEN IF THE TESTS ADOPTED BY
declared him in contempt and directed his arrest and detention. THIS HONORABLE COURT IN THE DECISION IS
  APPLIED, THERE IS NO SHOWING THAT THE
Petitioner then filed his Supplemental Petition for Certiorari ELEMENTS OF
(with Urgent Application for TRO/Preliminary Injunction) on February 1, PRESIDENTIAL COMMUNICATIONS PRIVILEGE
2008.  In the Court’s Resolution dated February 4, 2008, the parties were ARE PRESENT.
required to observe the status quo prevailing prior to the Order dated  
January 30, 2008. C.     ON THE CONTRARY, THERE IS
  ADEQUATE SHOWING OF A COMPELLING
  NEED TO JUSTIFY THE DISCLOSURE OF THE
          On March 25, 2008, the Court granted his petition for certiorari on INFORMATION SOUGHT.
two grounds: first, the communications elicited by the three (3)  
questions were covered by executive privilege; and second, respondent D.    TO UPHOLD THE CLAIM OF EXECUTIVE
Committees committed grave abuse of discretion in issuing the PRIVILEGE IN THE INSTANT CASE WOULD
contempt order.  Anent the first ground, we considered the subject SERIOUSLY IMPAIR THE RESPONDENTS’
communications as falling under the presidential communications PERFORMANCE OF THEIR PRIMARY
privilege because (a) they related to a quintessential and non-delegable FUNCTION TO ENACT LAWS.
power of the President, (b) they were received by a close advisor of the  
President, and (c) respondent Committees failed to adequately show a E.     FINALLY, THE CONSTITUTIONAL RIGHT OF THE
compelling need that would justify the limitation of the privilege and the PEOPLE TO INFORMATION, AND THE
unavailability of the information elsewhere by an appropriate CONSTITUTIONAL POLICIES ON PUBLIC
investigating authority. As to the second ground, we found that ACCOUNTABILITY AND TRANSPARENCY
respondent Committees committed grave abuse of discretion in issuing OUTWEIGH THE CLAIM OF EXECUTIVE
the contempt order because (a) there was a valid claim of executive PRIVILEGE.
privilege, (b) their invitations to petitioner did not contain the questions  
relevant to the inquiry, (c) there was a cloud of doubt as to the  
regularity of the proceeding that led to their issuance of the contempt IV
order, (d)they violated Section 21, Article VI of the Constitution because
49
 CONTRARY TO THIS HONORABLE COURT’S
DECISION, RESPONDENTS DID NOT COMMIT
GRAVE ABUSE OF DISCRETION IN ISSUING THE
ASSAILED CONTEMPT ORDER, CONSIDERING THAT:
 
A.                 THERE IS NO LEGITIMATE CLAIM OF
EXECUTIVE PRIVILEGE IN THE INSTANT
CASE.
 
B.                 RESPONDENTS DID NOT VIOLATE THE
SUPPOSED REQUIREMENTS LAID DOWN
IN SENATE V. ERMITA.
 
C.                 RESPONDENTS DULY ISSUED THE
CONTEMPT ORDER IN ACCORDANCE
WITH THEIR INTERNAL RULES.
 
D.                RESPONDENTS DID NOT VIOLATE THE
REQUIREMENTS UNDER ARTICLE VI,
SECTION 21 OF THE CONSTITUTION
REQUIRING THAT  ITS RULES OF
PROCEDURE BE DULY PUBLISHED,
AND  WERE DENIED DUE PROCESS
WHEN THE COURT CONSIDERED THE
OSG’S  INTERVENTION ON THIS ISSUE
WITHOUT GIVING RESPONDENTS THE
OPPORTUNITY TO COMMENT.
 
E.                 RESPONDENTS’ ISSUANCE OF THE
CONTEMPT ORDER IS NOT ARBITRARY
OR PRECIPITATE.
 
 
In his Comment, petitioner charges respondent Committees
with exaggerating and distorting the Decision of this Court. He avers that
there is nothing in it that prohibits respondent Committees from
investigating the NBN Project or asking him additional questions.
According to petitioner, the Court merely applied the rule on executive
privilege to the facts of the case. He further submits the following
contentions: first, the assailed Decision did not reverse the presumption
against executive secrecy laid down inSenate v.
Ermita; second,  respondent Committees failed to overcome the
presumption of executive privilege because it appears that they could
legislate even without the communications elicited by the three (3)
questions, and they admitted that they could dispense with petitioner’s
testimony if certain NEDA documents would be given to
them;  third, the requirement of specificity applies only to the privilege
for State, military and diplomatic secrets, not to the necessarily broad
and all-encompassing presidential communications
privilege; fourth,  there is no right to pry into the President’s thought
processes or exploratory exchanges; fifth,  petitioner is not covering up
or hiding anything illegal; sixth, the Court has the power and duty to
annul the Senate Rules; seventh, the Senate is not a continuing body,
thus the failure of the present Senate to publish its Rules of Procedure
Governing Inquiries in Aid of Legislation (Rules)  has a vitiating effect on
them; eighth,  the requirement for a witness to be furnished advance
copy of questions comports with due process and the constitutional
mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive
privilege, only the Court.
 
          For its part, the Office of the Solicitor General maintains
that: (1) there is no categorical pronouncement from the Court that the
assailed Orders were issued by respondent Committees pursuant to
their oversight function; hence, there is no reason for them “to make
much” of the distinction between Sections 21 and 22, Article VI of the
Constitution; (2) presidential communications enjoy a presumptive
privilege against disclosure as earlier held in Almonte v.
Vasquez[9]  and Chavez v. Public Estates Authority (PEA) [10];  (3) the
communications elicited by the three (3) questions are covered by
executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad
testificandum  issued by respondent Committees to petitioner is fatally
defective under existing law and jurisprudence; (5) the failure of the
present Senate to publish its Rules renders the same void;
and (6) respondent Committees arbitrarily issued the contempt order.
 
          Incidentally, respondent Committees’ objection to the Resolution
dated March 18, 2008 (granting the Office of the Solicitor General’s
Motion for Leave to Intervene and to Admit Attached Memorandum)
only after the promulgation of the Decision in this case is foreclosed by
its untimeliness.
         
The core issues that arise from the foregoing respective
contentions of the opposing parties are as follows:
 
(1)              whether or not there is a recognized
presumptive presidential
communications privilege in our legal
system;
 
(2)              whether or not there is factual or legal
basis to hold that the communications
elicited by the three (3) questions are
covered by executive privilege;
 
(3)              whether or not respondent Committees
have shown that the communications
elicited by the three (3) questions are
critical to the exercise of their
functions;  and
 
(4)              whether or not respondent Committees
committed grave abuse of discretion in
issuing the contempt order.
 
We shall discuss these issues  seriatim.
 
I
There Is a Recognized Presumptive
  Presidential Communications Privilege
 
Respondent Committees ardently argue that the Court’s
declaration that presidential communications are presumptively
privileged reverses the “presumption” laid down in Senate v.
Ermita[11]  that “inclines heavily against executive secrecy and in favor of
disclosure.”  Respondent Committees then claim that the Court erred in
relying on the doctrine in Nixon.
 
          Respondent Committees argue as if this were the first time the
presumption in favor of the presidential communications privilege is
mentioned and adopted in our legal system. That is far from the
truth.  The Court, in the earlier case of Almonte v. Vasquez,[12] affirmed
that the presidential communications privilege is fundamental to the
operation of government and inextricably rooted in the separation of
powers under the Constitution.  Even Senate v. Ermita,[13]  the case relied
upon by respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive privilege
was recognized, among them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG), [14]  and Chavez v. PEA.[15]  The
Court articulated in these cases that “there are certain types of
information which the government may withhold from the public, [16]”
that there is a “governmental privilege against public disclosure  with
respect to state secrets regarding military, diplomatic and other national
50
security matters”;[17] and that “the right to information does not extend
to matters recognized as ‘privileged information’  under the separation
of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings.” [18]
 
          Respondent Committees’ observation that this Court’s Decision
reversed the “presumption that inclines heavily against executive
secrecy and in favor of disclosure” arises from a piecemeal
interpretation of the said Decision.  The Court has repeatedly held that
in order to arrive at the true intent and meaning of a decision, no
specific portion thereof should be isolated and resorted to, but the
decision must be considered in its entirety. [19]
 
          Note that the aforesaid presumption is made in the context of the
circumstances obtaining in Senate v. Ermita, which declared void
Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of
2005.  The pertinent portion of the decision in the said case reads:
 
          From the above discussion on the meaning and
scope of executive privilege, both in the United
States and in this jurisprudence, a clear principle
emerges.  Executive privilege, whether asserted
against Congress, the courts, or the public, is
recognized only in relation to certain types of
information of a sensitive character.  While executive
privilege is a constitutional concept, a claim thereof
may be valid or not depending on the ground
invoked to justify it and the context in which it is
made.   Noticeably absent is any recognition that
executive officials are exempt from the duty to
disclose information by the mere fact of being
executive officials.  Indeed, the extraordinary
character of the exemptions indicates that the
presumption inclines heavily against executive
secrecy and in favor of disclosure.  (Emphasis and
underscoring supplied)
 
Obviously, the last sentence of the above-quoted paragraph
in Senate v. Ermita  refers to the “exemption” being claimed by the
executive officials mentioned in Section 2(b) of E.O. No. 464, solely by
virtue of their positions in the Executive Branch.  This means that when
an executive official, who is one of those mentioned in the said Sec. 2(b)
of E.O. No. 464, claims to be exempt from disclosure, there can be no
presumption of authorization to invoke executive privilege given by
the President to said executive official, such that the presumption in this
situation inclines heavily against executive secrecy and in favor of
disclosure.
          Senate v. Ermita  [20]  expounds on the premise of the foregoing
ruling in this wise:
            Section 2(b) in relation to Section 3 virtually
provides that, once the head of office determines
that a certain information is privileged, such
determination is presumed to bear the President’s
authority and has the effect of prohibiting the official
from appearing before Congress, subject only to the
express pronouncement of the President that it is
allowing the appearance of such official. These
provisions thus allow the President to authorize
claims of privilege by mere silence.
 
            Such presumptive authorization, however, is
contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is
recognized with respect to information the
confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of
the executive branch, or in those instances where
exemption from disclosure is necessary to the
discharge of highly important executive
responsibilities. The doctrine of executive privilege is
thus premised on the fact that certain information
must, as a matter of necessity, be kept confidential
in pursuit of the public interest. The privilege being,
by definition, an exemption from the obligation to
disclose information, in this case to Congress, the
necessity must be of such high degree as to
outweigh the public interest in enforcing that
obligation in a particular case.
 
             In light of this highly exceptional nature of
the privilege, the Court finds it essential to limit to
the President the power to invoke the privilege. She
may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is
“By order of the President”, which means that he
personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other
words, the President may not authorize her
subordinates to exercise such power. There is even
less reason to uphold such authorization in the
instant case where the authorization is not explicit
but by mere silence. Section 3, in relation to Section
2(b), is further invalid on this score.
 
          The constitutional infirmity found in the blanket authorization to
invoke executive privilege granted by the President to executive officials
in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
 
In this case, it was the President herself, through Executive
Secretary Ermita, who invoked executive privilege on a specific matter
involving an executive agreement between the Philippines and China,
which was the subject of the three (3) questions propounded to
petitioner Neri in the course of the Senate Committees’
investigation.  Thus, the factual setting of this case markedly differs from
that passed upon in Senate v. Ermita. 
 
Moreover, contrary to the claim of respondents, the Decision
in this present case hews closely to the ruling in  Senate v. Ermita,[21]  to
wit:
 
 
          Executive privilege
                        The phrase “executive privilege” is not
new in this jurisdiction.  It has been used even prior
to the promulgation of the 1986 Constitution.  Being
of American origin, it is best understood in light of
how it has been defined and used in the legal
literature of the United States.
 
            Schwart defines executive privilege as “the
power of the Government to withhold information
from the public, the courts, and the
Congress.  Similarly, Rozell defines it as “the right of
the President and high-level executive branch
officers to withhold information from Congress, the
courts, and ultimately the public.” x x x   In this
jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v.
51
 Vasquez.  Almonte used the term in reference to the There Are Factual and Legal Bases to
same privilege subject of Nixon.  It quoted the Hold that the Communications Elicited by the
following portion of the Nixon decision which Three (3) Questions Are Covered by Executive
explains the basis for the privilege: Privilege
   
            “The expectation of a President to Respondent Committees claim that the communications
the confidentiality of his conversations and elicited by the three (3) questions are not covered by executive privilege
correspondences,  like the claim of confidentiality of because the elements of the presidential communications privilege are
judicial deliberations, for example, he has all the not present.
values to which we accord deference for the privacy  
of all citizens and, added to those values, is the A.   The
necessity for protection of the public interest in pow
candid, objective, and even blunt or harsh opinions er to
in Presidential decision-making.  A President and ente
those who assist him must be free to explore r
alternatives in the process of shaping policies and into
making decisions and to do so in a way many would an
be unwilling to express except privately.  These are exec
the considerations justifying a presumptive utiv
privilege for Presidential communications.  The e
privilege is fundamental to the operation of agre
government and inextricably rooted in the eme
separation of powers under the Constitution x x x ” nt is
(Emphasis and italics supplied) a
  “qui
Clearly, therefore, even Senate v. Ermita adverts to “a ntes
presumptive privilege for Presidential communication,” which was senti
recognized early on in Almonte v. Vasquez.  To construe the passage al
in Senate v. Ermita adverted to in the Motion for Reconsideration of and
respondent Committees, referring to the non-existence of a non-
“presumptive authorization” of an executive official, to mean that the dele
“presumption” in favor of executive privilege “inclines heavily against gabl
executive secrecy and in favor of disclosure” is to distort the ruling in e
the Senate v. Ermita  and make the same engage in self-contradiction.  presi
  den
Senate v. Ermita[22] expounds on the constitutional tial
underpinning of the relationship between the Executive Department and pow
the Legislative Department to explain why there should be no implied er.”
authorization or presumptive authorization to invoke executive privilege  
by the President’s subordinate officials, as follows: First, respondent Committees contend that the power to
  secure a foreign loan does not relate to a “quintessential and non-
When Congress exercises its power of delegable presidential power,” because the Constitution does not vest it
inquiry, the only way for department heads to in the President alone, but also in the Monetary Board which is required
exempt themselves therefrom is by a valid claim of to give its prior concurrence and to report to Congress.
privilege.  They are not exempt by the mere fact  
that they are department heads.  Only one This argument is unpersuasive.
executive official may be exempted from this power  
– the President on whom executive power is vested, The fact that a power is subject to the concurrence of another
hence, beyond the reach of Congress except through entity does not make such power less executive. “Quintessential” is
the power of impeachment.  It is based on he being defined as the most perfect embodiment of something, the
the highest official of the executive branch, and the concentrated essence of substance. [24]  On the other hand, “non-
due respect accorded to a co-equal branch of delegable” means that a power or duty cannot be delegated to another
governments which is sanctioned by a long-standing or, even if delegated, the responsibility remains with the obligor. [25]  The
custom. (Underscoring supplied) power to enter into an executive agreement is in essence an executive
  power.  This authority of the President to enter into executive
Thus, if what is involved is the presumptive privilege of agreements without the concurrence of the Legislature has traditionally
presidential communications when invoked by the President on a matter been recognized in Philippine jurisprudence. [26]  Now, the fact that the
clearly within the domain of the Executive, the said presumption President has to  secure the prior concurrence of the Monetary Board,
dictates that the same be recognized and be given preference or which shall submit to Congress a complete report of its decision before
priority, in the absence of proof of a compelling or critical need for contracting or guaranteeing foreign loans, does not diminish the
disclosure by the one assailing such presumption.  Any construction to executive nature of the power. 
the contrary will render meaningless the presumption accorded by  
settled jurisprudence in favor of executive privilege.  In fact, Senate v. The inviolate doctrine of separation of powers among the
Ermita reiterates jurisprudence citing “the considerations justifying a legislative, executive and judicial branches of government by no means
presumptive privilege for Presidential communications.” [23] prescribes absolute autonomy in the discharge by each branch of that
  part of the governmental power assigned to it by the sovereign
II people.  There is the corollary doctrine of checks and balances, which
52
has been carefully calibrated by the Constitution to temper the official scope of the presidential communications privilege.   The U.S. court was
acts of each of these three branches. Thus, by analogy, the fact that aware of the dangers that a limitless extension of the privilege risks and,
certain legislative acts require action from the President for their validity therefore, carefully cabined its reach by explicitly confining it to White
does not render such acts less legislative in nature.  A good example is House staff, and not to staffs of the agencies, and then only to White
the power to pass a law.  Article VI, Section 27 of the Constitution House staff that has “operational proximity” to direct presidential
mandates that every bill passed by Congress shall, before it becomes a decision-making, thus:
law, be presented to the President who shall approve or veto the same.  
The fact that the approval or vetoing of the bill is lodged with the We are aware that such an extension,
President does not render the power to pass law executive in nature. unless carefully circumscribed to accomplish the
This is because the power to pass law is generally a quintessential and purposes of the privilege, could pose a significant
non-delegable power of the Legislature.  In the same vein, the executive risk of expanding to a large swath of the executive
power to enter or not to enter into a contract to secure foreign loans branch a privilege that is bottomed on a recognition
does not become less executive in nature because of conditions laid of the unique role of the President. In order to limit
down in the Constitution.  The final decision in the exercise of the said this risk, the presidential communications privilege
executive power is still lodged in the Office of the President. should be construed as narrowly as is consistent
  with ensuring that the confidentiality of the
B.   The President’s decision-making process is adequately
“doc protected. Not every person who plays a role in
trine the development of presidential advice, no matter
of how remote and removed from the President, can
oper qualify for the privilege. In particular, the privilege
atio should not extend to staff outside the White
nal House in executive branch agencies.  Instead, the
prox privilege should apply only to communications
imit authored or solicited and received by those
y” w members of an immediate White House advisor’s
as staff who have broad and significant responsibility
laid for investigation and formulating the advice to be
dow given the President on the particular matter to
n which the communications relate. Only
prec communications at that level are close enough to
isely the President to be revelatory of his deliberations
to or to pose a risk to the candor of his
limit advisers.  See  AAPS, 997 F.2d at 910 (it is
the “operational proximity” to the President that
scop matters in determining whether “[t]he President’s
e of confidentiality interests” is implicated). (Emphasis
the supplied)
presi  
den  
tial In the case at bar, the danger of expanding the privilege “to a
com large swath of the executive branch” (a fear apparently entertained by
mun respondents) is absent because the official involved here is a member of
icati the Cabinet, thus, properly within the term “advisor” of the President; in
ons fact, her alter ego and a member of her official family.  Nevertheless, in
privi circumstances in which the official involved is far too remote, this Court
lege also mentioned in the Decision the organizational test laid down
but, in Judicial Watch, Inc. v. Department of Justice.[28]  This goes to show that
in the operational proximity test used in the Decision is not considered
any conclusive in every case. In determining which test to use, the main
case consideration is to limit the availability of executive privilege only to
, it is officials who stand proximate to the President, not only by reason of
not their function, but also by reason of their positions in the Executive’s
conc organizational structure.  Thus, respondent Committees’ fear that the
lusiv scope of the privilege would be unnecessarily expanded with the use of
e. the operational proximity test is unfounded.
   
  C.   The
 Second, respondent Committees also seek reconsideration of Presi
the application of the “doctrine of operational proximity” for the reason dent
that   “it maybe misconstrued to expand the scope of the presidential ’s
communications    privilege to communications between those who are clai
‘operationally proximate’ to the President but who may have “no direct m of
communications with her.” exec
  utiv
It must be stressed that the doctrine of “operational e
proximity” was laid down in In re: Sealed Case[27]  precisely to limit the privi
53
lege                   Third, respondent Committees claim that the Court erred in
is upholding the President’s invocation, through the Executive Secretary,
not of executive privilege because (a) between respondent Committees’
mer specific and demonstrated need and the President’s generalized interest
ely in confidentiality, there is a need to strike the balance in favor of the
base former; and (b) in the balancing of interest, the Court disregarded the
d on provisions of the 1987 Philippine Constitution on government
a transparency, accountability and disclosure of information, specifically,
gen Article III, Section 7;[29] Article II, Sections 24[30] and 28;[31] Article XI,
erali Section 1;[32] Article XVI, Section 10;[33] Article VII,  Section 20;
[34]
zed   and  Article XII, Sections  9,[35] 21,[36] and 22.[37]  
inter  
est; It must be stressed that the President’s claim of executive
and privilege is not merely founded on her generalized interest in
in    b confidentiality.  The Letter  dated November 15, 2007 of Executive
alan Secretary Ermita specified presidential communications privilege in
cing relation to diplomatic and economic relations with another sovereign
resp nation as the bases for the claim.  Thus, the Letter stated:
ond  
ent  
Com The context in which executive privilege is being
mitt invoked is that the information sought to be
ees’ disclosed might impair our diplomatic as well as
and economic relations with the People’s Republic of
the China. Given the confidential nature in which this
Presi information were conveyed to the President, he
dent cannot provide the Committee any further details
’s of these conversations, without disclosing the very
clas thing the privilege is designed to protect. (emphasis
hing supplied)
inter  
ests, Even in Senate v. Ermita, it was held  that Congress must not
the require the Executive to state the reasons for the claim with such
Cour particularity as to compel disclosure of the information which the
t did privilege is meant to protect. This is a matter of respect for a coordinate
not and co-equal department.
disre  
gard             It is easy to discern the danger that goes with the disclosure of
the the President’s communication with her advisor.  The NBN Project
198 involves a foreign country as a party to the agreement.   It was actually a
7 product of the meeting of minds between officials of the Philippines and
Cons China. Whatever the President says about the agreement – particularly
titu while official negotiations are ongoing – are matters which China will
tion surely view with particular interest. There is danger in such kind of
al exposure.  It could adversely affect our diplomatic as well as economic
prov relations with the People’s Republic of China.  We reiterate the
ision importance of secrecy in matters involving foreign negotiations as stated
s on in United States v. Curtiss-Wright Export Corp.,  [38]  thus:
gove  
rnm The nature of foreign negotiations
ent requires caution, and their success must often
tran depend on secrecy, and even when brought to a
spar conclusion, a full disclosure of all the measures,
ency demands, or eventual concessions which may have
, been proposed or contemplated would be
acco extremely impolitic, for this might have a pernicious
unta influence on future negotiations or produce
bilit immediate inconveniences, perhaps danger and
y mischief, in relation to other powers. The necessity
and of such caution and secrecy was one cogent reason
discl for vesting the power of making treaties in the
osur President, with the advice and consent of the
e of Senate, the principle on which the body was
infor formed confining it to a small number of members.
mati To admit, then, a right in the House of
on. Representatives to demand and to have as a matter
  of course all the papers respecting a negotiation
54
 with a foreign power would be to establish a tentative
dangerous precedent. suggestion
  s and
US jurisprudence clearly guards against the dangers of proposals.  
allowing Congress access to all papers relating to a negotiation with a Delegates
foreign power.  In this jurisdiction, the recent case of Akbayan Citizens from other
Action Party, et al. v. Thomas G. Aquino, et al. [39] upheld the privileged countries
character of diplomatic negotiations. In Akbayan, the Court stated: come and
  tell you in
Privileged character of diplomatic negotiations confidence
  of their
            The privileged character of diplomatic troubles at
negotiations has been recognized in this home and
jurisdiction.  In discussing valid limitations on the of their
right to information, the Court in Chavez v. differences
PCGG held that “information on inter-government with other
exchanges prior to the conclusion of treaties and countries
executive agreements may be subject to reasonable and with
safeguards for the sake of national interest.”  Even other
earlier, the same privilege was upheld in People’s delegates; 
Movement for Press Freedom (PMPF) v. they tell
Manglapus wherein the Court discussed the reasons you
for the privilege in more precise terms. of what
  they would
            In PMPF v. Manglapus,  the  therein petitioners do under
were seeking information from the President’s certain
representatives on the state of the then on-going circumstan
negotiations of the RP-US Military Bases ces and
Agreement.  The Court denied the petition, stressing would not
that “secrecy of negotiations with foreign countries do under
is not violative of the constitutional provisions of other
freedom of speech or of the press nor of the circumstan
freedom of access to information.”  The Resolution ces… If
went on to state, thus: these
  reports…
The nature of should
diplomacy requires become
centralization of authority and public…
expedition of decision which who would
are inherent in executive ever
action.  Another essential trust Ameri
characteristic of diplomacy is can
its confidential Delegation
nature.  Although much has s in
been said about “open” and another
“secret” diplomacy, with conference
disparagement of the latter, ? (United
Secretaries of State Hughes and States
Stimson have clearly analyzed Departmen
and justified the practice.  In the t of State,
words of Mr. Stimson: Press
  Releases,
            “A June 7,
complicate 1930, pp.
d 282-284)
negotiatio  
n …cannot xxxx
be carried  
through There is frequent
without criticism of the secrecy in which
many, negotiation with foreign
many powers on nearly all subjects is
private concerned.  This, it is claimed,
talks and is incompatible with the
discussion, substance of democracy.  As
man to expressed by one writer, “It can
man; many be said that there is no more
55
 rigid system of silence
anywhere in the world.”  (E.J.
Young, Looking Behind the
Censorship, J. B. Lipincott Co.,
1938)  President Wilson in
starting his efforts for the
conclusion of the World War
declared that we must have
“open covenants, openly arrived
at.”  He quickly abandoned his
thought.
 
No one who has
studied the question believes
that such a method of publicity
is possible.  In the moment that
negotiations are started,
pressure groups attempt to
“muscle in.” An ill-timed
speech by one of the parties or
a frank declaration of the
concession which are
exacted or offered on both
sides would quickly lead to a
widespread propaganda to
block the negotiations. After a
treaty has been drafted and its
terms are fully published, there
is ample opportunity for
discussion before it is
approved.  (The New American
Government and Its Works,
James T. Young, 4th Edition, p.
194)  (Emphasis and
underscoring supplied)
 
Still in PMPF v. Manglapus, the Court
adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the
nation in its negotiations with foreign countries,viz:
 
“x x x In this vast
external realm, with its
important, complicated,
delicate and manifold problems,
the President alone has the
power to speak or listen as a
representative of the
nation.  He makes treaties with
the advice and consent of the
Senate; but he alone
negotiates.  Into the field of
negotiation the Senate cannot
intrude; and Congress itself is
powerless to invade it.  As
Marshall said in his great
arguments of March 7, 1800, in
the House of
Representatives, “The President
is the sole organ of the nation
in its external relations, and its
sole representative with
foreign nations.” Annals,
6th Cong., col. 613… (Emphasis
supplied; underscoring in the
original)
 
Considering that the information sought through the three (3)
questions subject of this Petition involves the President’s dealings with a
foreign nation, with more reason, this Court is wary of approving the
view that Congress may peremptorily inquire into not only official,
documented acts of the President but even her confidential and
informal discussions with her close advisors on the pretext that said
questions serve some vague legislative need.  Regardless of who is in
office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done
with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and
unchecked legislative incursion into the core of the President’s decision-
making process, which inevitably would involve her conversations with a
member of her Cabinet.
 
With respect to respondent Committees’ invocation of
constitutional prescriptions regarding the right of the people to
information and public accountability and transparency, the Court finds
nothing in these arguments to support respondent Committees’ case.
 
There is no debate as to the importance of the constitutional
right of the people to information and the constitutional policies on
public accountability and transparency.  These are the twin postulates
vital to the effective functioning of a democratic government.  The
citizenry can become prey to the whims and caprices of those to whom
the power has been delegated if they are denied access to
information.  And the policies on public accountability and democratic
government would certainly be mere empty words if access to such
information of public concern is denied.
 
          In the case at bar, this Court, in upholding executive privilege with
respect to three (3) specific questions, did not in any way curb the
public’s right to information or diminish the importance of public
accountability and transparency.
 
This Court did not rule that the Senate has no power to
investigate the NBN Project in aid of legislation. There is nothing in the
assailed Decision that prohibits respondent Committees from inquiring
into the NBN Project.  They could continue the investigation and even
call petitioner Neri to testify again. He himself has repeatedly expressed
his willingness to do so. Our Decision merely excludes from the scope of
respondents’ investigation the three (3) questions that elicit answers
covered by executive privilege and rules that petitioner cannot be
compelled to appear before respondents to answer the said
questions.  We have discussed the reasons why these answers are
covered by executive privilege.  That there is a recognized public interest
in the confidentiality of such information is a recognized principle in
other democratic States.  To put it simply, the right to information is not
an absolute right.
 
Indeed, the constitutional provisions cited by respondent
Committees do not espouse an absolute right to information.  By their
wording, the intention of the Framers to subject such right to the
regulation of the law is unmistakable.  The highlighted portions of the
following provisions show the obvious limitations on the right to
information, thus:
 
Article III, Sec. 7. The right of the people
to information on matters of public concern shall be
recognized. Access  to official records, and to
documents, and papers pertaining to official
records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as
to government research data used as basis for
policy development, shall be afforded the
citizen, subject to such limitations as may be
provided by law.
56
  
Article II, Sec. 28. Subject to reasonable
conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its
transactions involving public interest. (Emphasis
supplied)
 
 
In Chavez v. Presidential Commission on Good Government,
[40]
  it was stated that there are no specific laws prescribing the exact
limitations within which the right may be exercised or the correlative
state duty may be obliged.  Nonetheless, it enumerated the recognized
restrictions to such rights, among them: (1) national security
matters, (2) trade secrets and banking transactions, (3)criminal matters,
and (4) other confidential information.  National security matters include
state secrets regarding military and diplomatic matters, as well as
information on inter-government exchanges prior to the conclusion of
treaties and executive agreements.  It was further held that even where
there is no need to protect such state secrets, they must be “examined
in strict confidence and given scrupulous protection.” 
 
      Incidentally, the right primarily involved here is the right of
respondent Committees to obtain information allegedly in aid of
legislation,  not the people’s right to public information.  This is the
reason why we stressed in the assailed Decision the distinction between
these two rights.  As laid down in Senate v. Ermita, “the demand of a
citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a  subpoena
duces tecum issued by Congress” and “neither does the right to
information grant a citizen the power to exact testimony from
government officials.”  As pointed out, these rights belong to Congress,
not to the individual citizen.  It is worth mentioning at this juncture that
the parties here are respondent Committees and petitioner Neri and
that there was no prior request for information on the part of any
individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate
legislative inquiry and the public's right to information.
           
          For clarity, it must be emphasized that the assailed Decision did
not enjoin respondent Committees from inquiring into the NBN
Project. All that is expected from them is to respect matters that are
covered by executive privilege.  confidence in the system depend on full disclosure
 
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
 
In their Motion for Reconsideration, respondent Committees
devote an unusually lengthy discussion on the purported legislative
nature of their entire inquiry, as opposed to an oversight inquiry. 
 
At the outset, it must be clarified that the Decision did not
pass upon the nature of respondent Committees’ inquiry into the NBN
Project.   To reiterate, this Court recognizes respondent Committees’
power to investigate the NBN Project in aid of legislation. However, this
Court cannot uphold the view that when a constitutionally guaranteed
privilege or right is validly invoked by a witness in the course of a
legislative investigation, the legislative purpose of respondent
Committees’ questions can be sufficiently supported by the expedient of
mentioning statutes and/or pending bills to which their inquiry as a
whole may have relevance. The jurisprudential test laid down by this
Court in past decisions on executive privilege is that the presumption of
privilege can only be overturned by a showing of compelling need for
disclosure of the information covered by executive privilege.              In this case we must weigh the importance of
 
In the Decision, the majority held that “there is no adequate
showing of a compelling need that would justify the limitation of the
privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority.” In the Motion for Reconsideration,
respondent Committees argue that the information elicited by the three
(3) questions are necessary in the discharge of their legislative functions,
among them,        (a) to consider the three (3) pending Senate Bills,
and (b) to curb graft and corruption. 
 
We remain unpersuaded by respondents’ assertions.
 
In U.S. v. Nixon, the U.S. Court held that executive privilege is
subject to balancing against other interests and it is necessary to resolve
the competing interests in a manner that would preserve the essential
functions of each branch.  There, the Court weighed between
presidential privilege and the legitimate claims of the judicial process.  In
giving more weight to the latter, the Court ruled that the President's
generalized assertion of privilege must yield to the demonstrated,
specific need for evidence in a pending criminal trial.
         
The Nixon Court ruled that an absolute and unqualified
privilege would stand in the way of the primary constitutional duty of
the Judicial Branch to do justice in criminal prosecutions. The said Court
further ratiocinated, through its ruling extensively quoted in the
Honorable Chief Justice Puno's dissenting opinion, as follows:
 
            “... this presumptive privilege must be
considered in light of our historic commitment to the
rule of law.  This is nowhere more profoundly
manifest than in our view that 'the twofold aim (of
criminal justice) is that guild shall not escape or
innocence suffer.'  Berger v. United States, 295 U.S.,
at 88, 55 S.Ct., at 633.  We have elected to employ an
adversary system of criminal justice in which the
parties contest all issues before a court of law.  The
need to develop all relevant facts in the adversary
system is both fundamental and
comprehensive.  The ends of criminal justice would
be defeated if judgments were to be founded on a
partial or speculative presentation of the facts.  The
very integrity of the judicial system and public
of all the facts, within the framework of the rules of
evidence.  To ensure that justice is done, it is
imperative to the function of courts that
compulsory process be available for the production
of evidence needed either by the prosecution or by
the defense.
 
xxx                                   xxx                                   xxx
 
            The right to the production of all evidence at a
criminal trial similarly has constitutional
dimensions.  The Sixth Amendment explicitly confers
upon every defendant in a criminal trial the right 'to
be confronted with the witness against him' and 'to
have compulsory process for obtaining witnesses in
his favor.'  Moreover, the Fifth Amendment
also guarantees that no person shall be deprived of
liberty without due process of law.  It is
the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that
all relevant and admissible evidence be produced.
 
the general privilege of confidentiality of
Presidential communications in performance of the
57
 President's responsibilities against the inroads of
such a privilege on the fair administration of
criminal justice. (emphasis supplied)
 
xxx                                   xxx                                   xxx
 
...  the allowance of the privilege to withhold
evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due
process of law and gravely impair the basic function
of the courts.  A President's acknowledged need for
confidentiality in the communications of his office
is general in nature, whereas the constitutional need
for production of relevant evidence in a criminal
proceeding is specific and central to the fair
adjudication of a particular criminal case in the
administration of justice.  Without access to specific
facts a criminal prosecution may be totally
frustrated.  The President's broad interest in
confidentiality of communication will not be
vitiated bydisclosure of a limited number of
conversations preliminarily shown to have some
bearing on the pending criminal cases.
 
            We conclude that when the ground for
asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on
thegeneralized interest in confidentiality, it cannot
prevail over the fundamental demands of due
process of law in the fair administration of criminal
justice.  The generalized assertion of privilege must
yield to the demonstrated, specific need for
evidence in a pending criminal trial.     (emphasis
supplied)
 
 
          In the case at bar, we are not confronted with a court’s need for
facts in order to adjudge liability in a criminal case but rather with the
Senate’s need for information in relation to its legislative functions. This
leads us to consider once again just how critical is the subject
information in the discharge of respondent Committees’ functions.  The
burden to show this is on the respondent Committees, since they seek to
intrude into the sphere of competence of the President in order to
gather information which, according to said respondents, would “aid”
them in crafting legislation.
 
 Senate Select Committee on Presidential Campaign Activities
v. Nixon[41] expounded on the nature of a legislative inquiry in aid of
legislation in this wise:
 
The sufficiency of the Committee's
showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are
critical to the performance of its legislative
functions.  There is a clear difference between
Congress' legislative tasks and the responsibility of
a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative
committee is undeniably a part of its task,
legislative judgments normally depend more on
the predicted consequences of proposed
legislative actions and their political acceptability,
than on precise reconstruction of past events;
Congress frequently legislates on the basis of
conflicting information provided in its hearings.  In
contrast, the responsibility of the grand jury turns
entirely on its ability to determine whether there is
probable cause to believe that certain named
individuals did or did not commit specific crimes. If,
for example, as in Nixon v. Sirica, one of those
crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most
precise evidence, the exact text of oral statements
recorded in their original form, is undeniable. We
see no comparable need in the legislative process,
at least not in the circumstances of this
case. Indeed, whatever force there might once
have been in the Committee's argument that the
subpoenaed materials are necessary to its
legislative judgments has been substantially
undermined by subsequent events. (Emphasis
supplied)
 
 
Clearly, the need for hard facts in crafting legislation cannot
be equated with the compelling or demonstratively critical and specific
need for facts which is so essential to the judicial power to adjudicate
actual controversies.  Also, the bare standard of “pertinency” set
in Arnault cannot be lightly applied to the instant case, which
unlike Arnault involves a conflict between two (2) separate, co-equal
and coordinate Branches of the Government.
 
Whatever test we may apply, the starting point in resolving
the conflicting claims between the Executive and the Legislative
Branches is the recognized existence of the presumptive presidential
communications privilege. This is conceded even in the Dissenting
Opinion of the Honorable Chief Justice Puno, which states:
 
                        A hard look at Senate v. Ermita ought
to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential
communications privilege.  As shown in the previous
discussion, U.S. v. Nixon, as well as the other related
Nixon cases Sirica and Senate Select Committee on
Presidential Campaign Activities, et al., v. Nixon in
the D.C. Court of Appeals, as well as subsequent
cases all recognize that there is a presumptive
privilege in favor of Presidential
communications.  The Almonte case quoted U.S. v.
Nixon and recognized a presumption in favor of
confidentiality of Presidential communications.
 
The presumption in favor of Presidential communications puts
the burden on the respondent Senate Committees to overturn the
presumption by demonstrating their specific need for the information to
be elicited by the answers to the three (3) questions subject of this case,
to enable them to craft legislation.  Here, there is simply
a generalized assertion that the information is pertinent to the exercise
of the power to legislate and a broad and non-specific reference to
pending Senate bills.  It is not clear what matters relating to these bills
could not be determined without the said information sought by the
three (3) questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:
 
…If respondents are operating under the premise
that the president and/or her executive officials
have committed wrongdoings that need to be
corrected or prevented from recurring by remedial
legislation, the answer to those three questions
will not necessarily bolster or inhibit respondents
from proceeding with such legislation. They could
easily presume the worst of the president in
enacting such legislation.
 
58
 For sure, a factual basis for situations covered by bills is not
critically needed before legislatives bodies can come up with relevant
legislation unlike in the adjudication of cases by courts of
law.  Interestingly, during the Oral Argument before this Court, the
counsel for respondent Committees impliedly admitted that the Senate
could still come up with legislations even without petitioner answering
the three (3) questions.  In other words, the information being elicited is
not so critical after all.  Thus:               Again, about the second question,
 
 
CHIEF JUSTICE PUNO
 
            So can you tell the Court how
critical are these questions to
the lawmaking function of the
Senate. For instance, question
Number 1 whether the
President followed up the NBN
project. According to the other
counsel this question has
already been asked, is that
correct?
 
 
 
ATTY. AGABIN
 
Well, the question has been
asked but it was not answered,
Your Honor.
 
CHIEF JUSTICE PUNO
                       
            Yes. But my question is how
critical is this to the lawmaking
function of the Senate?
 
ATTY. AGABIN
 
            I believe it is critical, Your Honor.
 
CHIEF JUSTICE PUNO
 
            Why?
 
ATTY. AGABIN
 
For instance, with respect to
the proposed Bill of Senator
Miriam Santiago, she would
like to indorse a Bill to include
Executive Agreements had
been used as a device to the
circumventing the
Procurement Law.
CHIEF JUSTICE PUNO
            But the question is just following it
up.
 
ATTY. AGABIN
 
            I believe that may be the initial
question, Your Honor, because  
if we look at this problem in its  
factual setting as counsel for
petitioner has observed, there
are intimations of a bribery
scandal involving high
government officials.
 
CHIEF JUSTICE PUNO
 
were you dictated to prioritize
this ZTE, is that critical to the
lawmaking function of the
Senate? Will it result to the
failure of the Senate to cobble
a Bill without this question?
 
ATTY. AGABIN
 
            I think it is critical to lay the factual
foundations for a proposed
amendment to the
Procurement Law, Your Honor,
because the petitioner had
already testified that he was
offered a P200 Million bribe,
so if he was offered a P200
Million bribe it is possible that
other government officials
who had something to do with
the approval of the contract
would be offered the same
amount of bribes.
 
CHIEF JUSTICE PUNO
 
            Again, that is speculative.
 
ATTY. AGABIN
 
That is why they want to
continue with the
investigation, Your Honor.
 
CHIEF JUSTICE PUNO
 
How about the third question,
whether the President said to
go ahead and approve the
project after being told about
the alleged bribe. How critical
is that to the lawmaking
function of the Senate? And
the question is may they craft
a Bill a remedial law without
forcing petitioner Neri to
answer this question?
ATTY. AGABIN
Well, they can craft it, Your
Honor, based on mere
speculation. And sound
legislation requires that a
proposed Bill should have
some basis in fact.[42]
59
          The failure of the counsel for respondent Committees to pinpoint
the specific need for the information sought or how the withholding of
the information sought will hinder the accomplishment of their
legislative purpose is very evident in the above oral exchanges.   Due to
the failure of the respondent Committees to successfully discharge this
burden, the presumption in favor of confidentiality of presidential
communication stands.  The implication of the said presumption, like
any other, is to dispense with the burden of proof as to whether the
disclosure will significantly impair the President’s performance of her
function.  Needless to state this is assumed, by virtue of the
presumption.
          Anent respondent Committees’ bewailing that they would have to
“speculate” regarding the questions covered by the privilege, this does
not evince a compelling need for the information
sought.  Indeed, Senate Select Committee on Presidential Campaign
Activities v. Nixon[43]  held that  while fact-finding by a legislative
committee is undeniably a part of its task, legislative judgments normally
depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction
of past events. It added that, normally, Congress legislates on the basis
of conflicting information provided in its hearings.  We cannot subscribe
to the respondent Committees’ self-defeating proposition that without
the answers to the three (3) questions objected to as privileged, the
distinguished members of the respondent Committees cannot
intelligently craft legislation.
 
Anent the function to curb graft and corruption, it must be
stressed that respondent Committees’ need for information in the
exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because curbing
graft and corruption is merely an oversight function of Congress. [44]  And
if this is the primary objective of respondent Committees in asking the
three (3) questions covered by privilege, it may even contradict their
claim that their purpose is legislative in nature and not oversight. In any
event, whether or not investigating graft and corruption is a legislative
or oversight function of Congress, respondent Committees’ investigation
cannot transgress bounds set by the Constitution.
 
In  Bengzon, Jr. v. Senate Blue Ribbon Committee, [45] this Court
ruled:
 
The “allocation of constitutional boundaries” is a
task that this Court must perform under the
Constitution. Moreover, as held in a recent case,
“the political question doctrine neither interposes
an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987
Constitution, although said provision by no means
does away with the applicability of the principle in
appropriate cases.[46] (Emphasis supplied)
 
 
There, the Court further ratiocinated that “the contemplated
inquiry by respondent Committee is not really ‘in aid of legislation’
because it is not related to a purpose within the jurisdiction of
Congress, since the aim of the investigation is to find out whether or
not the relatives of     the President or Mr. Ricardo Lopa had violated
Section 5 of R.A. No. 3019, theAnti-Graft and Corrupt Practices Act, a
matter that           appears more within the province of the courts
rather than of the Legislature.”[47] (Emphasis and underscoring supplied)
 
The general thrust and the tenor of the three (3) questions is
to trace the alleged bribery to the Office of the President. [48] While it may
be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government
transaction, it is simply not a task for the Senate to perform.  The role of
the Legislature is to make laws, not to determine anyone’s guilt of a
crime or wrongdoing.  Our Constitution has not bestowed upon the
Legislature the latter role.   Just as the Judiciary cannot legislate, neither
can the Legislature adjudicate or prosecute. 
 
          Respondent Committees claim that they are conducting an
inquiry  in aid of legislation and a “search for truth,” which in respondent
Committees’ view appears to be equated with the search for persons
responsible for “anomalies” in government contracts.
          No matter how noble the intentions of respondent Committees
are, they cannot assume the power reposed upon our prosecutorial
bodies and courts. The determination of who is/are liable for a crime or
illegal activity, the investigation of the role played by each official, the
determination of who should be haled to court for prosecution and the
task of coming up with conclusions and finding of facts regarding
anomalies, especially the determination of criminal guilt, are not
functions of the Senate. Congress is neither a law enforcement nor a
trial agency.  Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate task of
the Congress, i.e. legislation.  Investigations conducted solely to gather
incriminatory evidence and “punish” those investigated are
indefensible.  There is no Congressional power to expose for the sake of
exposure.[49]  In this regard, the pronouncement in Barenblatt v. United
States[50]   is instructive, thus:
 
Broad as it is, the power is not,
however, without limitations. Since Congress may
only investigate into the areas in which it may
potentially legislate or appropriate, it cannot
inquire into matters which are within the exclusive
province of one of the other branches of the
government. Lacking the judicial power given to the
Judiciary, it cannot inquire into matters that are
exclusively the concern of the Judiciary. Neither can
it supplant the Executive in what exclusively
belongs to the Executive. (Emphasis supplied.)
 
 
At this juncture, it is important to stress that complaints
relating to the NBN Project have already been filed against President
Arroyo and other personalities before the Office of the Ombudsman.
Under our Constitution, it is the Ombudsman who has the duty“to
investigate any act or omission of any public official, employee, office
or agency when such act or omission appears to be illegal, unjust,
improper, or inefficient.”[51]  The Office of the Ombudsman is the body
properly equipped by the Constitution and our laws to preliminarily
determine whether or not the allegations of anomaly are true and who
are liable therefor. The same holds true for our courts upon which the
Constitution reposes the duty to determine criminal guilt with
finality.  Indeed, the rules of procedure in the Office of the Ombudsman
and the courts are well-defined and ensure that the constitutionally
guaranteed rights of all persons, parties and witnesses alike, are
protected and safeguarded. 
 
Should respondent Committees uncover information related
to a possible crime in the course of their investigation, they have the
constitutional duty to refer the matter to the appropriate agency or
branch of government. Thus, the Legislature’s need for information in an
investigation of graft and corruption cannot be deemed compelling
enough to pierce the confidentiality of information validly covered by
executive privilege.  As discussed above, the Legislature can still legislate
on graft and corruption even without the information covered by the
three (3) questions subject of the petition.
 
60
 Corollarily, respondent Committees justify their rejection of
petitioner’s claim of executive privilege on the ground that there is no
privilege when the information sought might involve a crime or illegal
activity, despite the absence of an administrative or judicial
determination to that effect.  Significantly, however, in Nixon v. Sirica,
[52]
 the showing required to overcome the presumption favoring
confidentiality turned, not on the nature of the presidential conduct
that the subpoenaed material might reveal, but, instead, on the nature
and appropriateness of the function in the performance of which the
material was sought, and the degree to which the material was
necessary to its fulfillment.
 
Respondent Committees assert that Senate Select Committee
on Presidential Campaign Activities v. Nixon  does not apply to   the case
at bar because, unlike in the said case, no impeachment proceeding has
been initiated at present. The Court is not persuaded. While it is true
that no impeachment proceeding has been initiated, however,
complaints relating to the NBN Project have already been filed against
President Arroyo and other personalities before the Office of the
Ombudsman.  As the Court has said earlier, the prosecutorial and judicial
arms of government are the bodies equipped and mandated by the
Constitution and our laws to determine whether or not the allegations
of anomaly in the NBN Project are true and, if so, who should be
prosecuted and penalized for criminal conduct.
 
Legislative inquiries, unlike court proceedings, are not subject
to the exacting standards of evidence essential to arrive at accurate
factual findings to which to apply the law.  Hence, Section 10 of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation
provides that “technical rules of evidence applicable to judicial
proceedings which do not affect substantive rights need not be observed
by the Committee.”  Court rules which prohibit leading, hypothetical, or
repetitive questions or questions calling for a hearsay answer, to name a
few, do not apply to a legislative inquiry.  Every person, from the highest
public official to the most ordinary citizen, has the right to be presumed
innocent until proven guilty in proper proceedings by a competent court
or body.   pause and seriously consider the constitutional
 
 
IV
Respondent Committees Committed Grave
  Abuse of Discretion in Issuing the Contempt Order
 
          Respondent Committees insist that they did not commit grave
abuse of discretion in issuing the contempt order because (1)there is no
legitimate claim of executive privilege; (2) they did not violate the
requirements laid down in Senate v. Ermita;  (3) they issued the
contempt order in accordance with their internal Rules; (4)  they did not
violate the requirement under Article VI, Section 21 of the Constitution
requiring the publication of their  Rules; and (5) their issuance of the
contempt order is not arbitrary  or precipitate.
          We reaffirm our earlier ruling.
 
   The legitimacy of the claim of executive privilege having been
fully discussed in the preceding pages, we see no reason to discuss it
once again.
 
   Respondent Committees’ second argument rests on the view
that the ruling in Senate v. Ermita, requiring invitations or subpoenas to
contain the “possible needed statute which prompted the need for the
inquiry” along with the “usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof” is not provided for
by the Constitution and is merely an obiter dictum.
 
   On the contrary, the Court sees the rationale and necessity of
compliance with these requirements.
 
 An unconstrained congressional investigative power, like an
unchecked Executive, generates its own abuses. Consequently, claims
that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times. [53]Constant exposure
to congressional subpoena takes its toll on the ability of the Executive to
function effectively. The requirements set forth in Senate v. Ermita are
modest mechanisms that would not unduly limit Congress’ power. The
legislative inquiry must be confined to permissible areas and thus,
prevent the “roving commissions” referred to in the U.S. case, Kilbourn
v. Thompson.[54] Likewise, witnesses have their constitutional right to due
process.  They should be adequately informed what matters are to be
covered by the inquiry.  It will also allow them to prepare the pertinent
information and documents. To our mind, these requirements concede
too little political costs or burdens on the part of Congress when viewed
vis-à-vis the immensity of its power of inquiry. The logic of these
requirements is well articulated in the study conducted by William P.
Marshall,[55] to wit:
 
A second concern that might be
addressed is that the current system allows
committees to continually investigate the Executive
without constraint. One process solution
addressing this concern is to require each
investigation be tied to a clearly stated purpose. At
present, the charters of some congressional
committees are so broad that virtually any matter
involving the Executive can be construed to fall
within their province. Accordingly, investigations
can proceed without articulation of specific need or
purpose. A requirement for a more precise charge
in order to begin an inquiry should immediately
work to limit the initial scope of the investigation
and should also serve to contain the investigation
once it is instituted. Additionally, to the extent
clear statements of rules cause legislatures to
implications of proposed courses of action in other
areas, they would serve that goal in the context of
congressional investigations as well.
 
The key to this reform is in its details. A
system that allows a standing committee to simply
articulate its reasons to investigate pro forma does
no more than imposes minimal drafting burdens.
Rather, the system must be designed in a manner
that imposes actual burdens on the committee to
articulate its need for investigation and allows for
meaningful debate about the merits of proceeding
with the investigation. (Emphasis supplied)
 
          Clearly, petitioner’s request to be furnished an advance copy of
questions is a reasonable demand that should have been granted by
respondent Committees.    
 
          Unfortunately, the Subpoena Ad Testificandum dated November
13, 2007 made no specific reference to any pending Senate bill.  It did
not also inform petitioner of the questions to be asked.  As it were, the
subpoena merely commanded him to “testify on what he knows relative
to the subject matter under inquiry.”
 
          Anent the third argument, respondent Committees contend that
their Rules of Procedure Governing Inquiries in Aid of Legislation (the
“Rules”)  are beyond the reach of this Court.  While it is true that this
Court must refrain from reviewing the internal processes of Congress, as
a co-equal branch of government, however, when a constitutional
61
requirement exists, the Court has the duty to look into Congress’
compliance therewith. We cannot turn a blind eye to possible violations
of the Constitution simply out of courtesy.  In this regard, the
pronouncement in Arroyo v. De Venecia[56]  is enlightening, thus:
 
“Cases both here and abroad, in varying
forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a
law, a House of Congress failed to comply with its
own rules, in the absence of showing that there
was a violation of a constitutional provision or the
rights of private individuals.
 
United States v. Ballin, Joseph & Co., the
rule was stated thus: ‘The Constitution empowers
each House to determine its rules of proceedings. It
may not by its rules ignore constitutional
restraints or violate fundamental rights, and there
should be a reasonable relation between the
mode or method of proceeding established by the
rule and the result which is sought to be attained.”
    
                           
In the present case, the Court’s exercise of its power of
judicial review is warranted because there appears to be a clear abuse of
the power of contempt on the part of respondent Committees.  Section
18 of the Rules provides that:
 
“The Committee, by a vote of majority of
all its members, may punish for contempt any
witness before it who disobey any order of the
Committee or refuses to be sworn or to testify or to
answer proper questions by the Committee or any
of its members.” (Emphasis supplied)
 
 
          In the assailed Decision, we said that there is a cloud of doubt as to
the validity of the contempt order because during the deliberation of
the three (3) respondent Committees, only seven (7) Senators were
present.  This number could hardly fulfill the majority requirement
needed by respondent  Committee on Accountability of Public Officers
and Investigations which has a membership of seventeen (17) Senators
and respondent Committee on National Defense and Security which has
a membership of eighteen (18) Senators.  With respect to
respondent Committee on Trade and Commerce which has a
membership of nine (9) Senators, only three (3) members were present.
[57]
  These facts prompted us to quote in the Decision the exchanges
between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr.
whereby the former raised the issue of lack of the required majority to
deliberate and vote on the contempt order.  shall terminate upon the expiration of one (1)
 
When asked about such voting during the March 4, 2008
hearing before this Court, Senator Francis Pangilinan stated that any
defect in the committee voting had been cured because two-thirds of
the Senators effectively signed for the Senate in plenary session. [58]
 
Obviously the deliberation of the respondent Committees that
led to the issuance of the contempt order is flawed.  Instead of being
submitted to a full debate by all the members of the respondent
Committees, the contempt order was prepared and thereafter
presented to the other members for signing.  As a result, the contempt
order which was issued on January 30, 2008 was not a faithful
representation of the proceedings that took place on said date.  Records
clearly show that not all of those who signed the contempt order were
present during the January 30, 2008 deliberation when the matter was
taken up.  business, then pending matters will not be deemed terminated with the
Section 21, Article VI of the Constitution states that:
 
The Senate or the House of
Representatives or any of its respective committees
may conduct inquiries in aid of legislation in
accordance with its duly published rules of
procedure. The rights of person appearing in or
affected by such inquiries shall be
respected. (Emphasis supplied)
 
 
All the limitations embodied in the foregoing provision form
part of the witness’ settled expectation. If the limitations are not
observed, the witness’ settled expectation is shattered.  Here, how could
there be a majority vote when the members in attendance are not
enough to arrive at such majority? Petitioner has the right to expect that
he can be cited in contempt only through a majority vote in a
proceeding in which the matter has been fully deliberated upon. There is
a greater measure of protection for the witness when the concerns and
objections of the members are fully articulated in such proceeding.  We
do not believe that respondent Committees have the discretion to set
aside their rules anytime they wish.  This is especially true here where
what is involved is the contempt power.  It must be stressed that
the Rules are not promulgated for their benefit.  More than anybody
else, it is the witness who has the highest stake in the proper
observance of the Rules.
 
Having touched the subject of the Rules, we now proceed to
respondent Committees’ fourth argument.  Respondent Committees
argue that the Senate does not have to publish its Rules because the
same was published in 1995 and in 2006.  Further, they claim that the
Senate is a continuing body; thus, it is not required to republish
the Rules,  unless the same is repealed or amended.
 
On the nature of the Senate as a “continuing body,” this Court
sees fit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is “continuing”, as it is not dissolved as an entity
with each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each
Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it
states:
 
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end
of the session shall be taken up at the next session
in the same status.
All pending matters and proceedings
Congress, but may be taken by the succeeding
Congress as if present for the first time. (emphasis
supplied)
 
Undeniably from the foregoing, all pending matters and
proceedings, i.e. unpassed bills and even legislative investigations, of the
Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the
succeeding Congress to take up such unfinished matters, not in the
same status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the Senate
of the succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound by
the acts and deliberations of the Senate of which they had no part. If the
Senate is a continuing body even with respect to the conduct of its
62
expiration of one Congress but will, as a matter of course, continue into
the next Congress with the same status.
This dichotomy of the continuity of the Senate as an
institution and of the opposite nature of the conduct of its business is
reflected in its Rules.  The Rules of the Senate (i.e. the Senate’s main
rules of procedure) states:
 
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in
which the Senators elected in the preceding
elections shall begin their term of office, the
President may endorse the Rules to the
appropriate committee for amendment or
revision.
The Rules may also be amended by means of
a motion which should be presented at least one
day before its consideration, and the vote of the
majority of the Senators present in the session shall
be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on
the date of their adoption and shall remain in
force until they are amended or repealed.
(emphasis supplied)
 
Section 136 of the Senate Rules quoted above takes into
account the new composition of the Senate after an election and the
possibility of the amendment or revision of the Rules at the start
of each session in which the newly elected Senators shall begin their
term.
 
However, it is evident that the Senate has determined that its
main rules are intended to be valid from the date of their adoption until
they are amended or repealed.  Such language is conspicuously absent
from the Rules. The Rules  simply state “(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general
circulation.”[59] The latter does not explicitly provide for the continued
effectivity of such rules until they are amended or repealed.  In view of
the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into
the next Congress. The Senate of the next Congress may easily adopt
different rules for its legislative inquiries which come within the rule on
unfinished business.
 
The language of Section 21, Article VI of the Constitution requiring
that the inquiry be conducted in accordance with the duly published
rules of procedure is categorical.  It is incumbent upon the Senate to
publish the rules for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or
repealed to sufficiently put public  on notice.
 
If it was the intention of the Senate for its present rules on
legislative inquiries to be effective even in the next Congress, it could
have easily adopted the same language it had used in its main rules
regarding effectivity.
 
          Lest the Court be misconstrued, it should likewise be stressed that
not all orders issued or proceedings conducted pursuant to the
subject Rules are null and void.  Only those that result in violation of the
rights of witnesses should be considered null and void, considering that
the rationale for the publication is to protect the rights of witnesses as
expressed in Section 21, Article VI of the Constitution.  Sans  such
violation, orders and proceedings are considered valid and effective.
Respondent Committees’ last argument is that their issuance
of the contempt order is not precipitate or arbitrary. Taking into account
the totality of circumstances, we find no merit in their argument.
 
As we have stressed before, petitioner is not an unwilling
witness, and contrary to the assertion of respondent Committees,
petitioner did not assume that they no longer had any other questions
for him.  He repeatedly manifested his willingness to attend subsequent
hearings and respond to new matters. His only request was that he be
furnished a copy of the new questions in advance to enable him to
adequately prepare as a resource person.  He did not attend the
November 20, 2007 hearing because Executive Secretary Ermita
requested respondent Committees to dispense with his testimony on
the ground of executive privilege.  Note that petitioner is an executive
official under the direct control and supervision of the Chief
Executive.  Why punish petitioner for contempt when he was merely
directed by his superior?  Besides, save for the three (3) questions, he
was very cooperative during the September 26, 2007 hearing.  
On the part of respondent Committees, this Court observes
their haste and impatience. Instead of ruling on Executive Secretary
Ermita’s claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner.  They could have
informed petitioner of their ruling and given him time to decide whether
to accede or file a motion for reconsideration. After all, he is not just an
ordinary witness; he is a high- ranking official in a co-equal branch of
government. He is an alter ego of the President. The same haste and
impatience marked the issuance of the contempt order, despite the
absence of the majority of the members of the respondent Committees,
and their subsequent disregard of petitioner’s motion for
reconsideration alleging the pendency of his petition
for certiorari before this Court.          
         
          On a concluding note, we are not unmindful of the fact that the
Executive and the Legislature are political branches of government. In a
free and democratic society, the interests of these branches inevitably
clash, but each must treat the other with official courtesy and respect.
This Court wholeheartedly concurs with the proposition that it is
imperative for the continued health of our democratic institutions that
we preserve the constitutionally mandated checks and balances among
the different branches of government.
 
          In the present case, it is respondent Committees’ contention that
their determination on the validity of executive privilege should be
binding on the Executive and the Courts. It is their assertion
that their internal procedures and deliberations cannot be inquired into
by this Court supposedly in accordance with the principle of respect
between co-equal branches of government. Interestingly, it is a courtesy
that they appear to be unwilling to extend to the Executive (on the
matter of executive privilege) or this Court (on the matter of judicial
review). It moves this Court to wonder: In respondent Committees’
paradigm of checks and balances, what are the checks to the
Legislature’s all-encompassing, awesome power of investigation? It is a
power, like any other, that is susceptible to grave abuse.
 
          While this Court finds laudable the respondent Committees’ well-
intentioned efforts to ferret out corruption, even in the highest echelons
of government, such lofty intentions do not validate or accord to
Congress powers denied to it by the Constitution and granted instead to
the other branches of government.
 
          There is no question that any story of government malfeasance
deserves an inquiry into its veracity.  As respondent Committees
contend, this is founded on the constitutional command of transparency
63
and public accountability.  The recent clamor for a “search for truth” by
the general public, the religious community and the academe is an
indication of a concerned citizenry, a nation that demands an accounting
of an entrusted power.  However, the best venue for this noble
undertaking is not in the political branches of government. The
customary partisanship and the absence of generally accepted rules on
evidence are too great an obstacle in arriving at the truth or achieving
justice that meets the test of the constitutional guarantee of due
process of law.  We believe the people deserve a more exacting “search
for truth” than the process here in question, if that is its objective.
 
         WHEREFORE, respondent Committees’ Motion for Reconsideration
dated April 8, 2008 is hereby DENIED.
 
          SO ORDERED.

EN BANC
[G.R. Nos. 132875-76. February 3, 2000]

64
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.  ROMEO G.
JALOSJOS, accused-appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo G. Jalosjos is a full-fledged member of
Congress who is now confined at the national penitentiary while his
conviction for statutory rape on two counts and acts of lasciviousness on
six counts[1] is pending appeal. The accused-appellant filed this motion
asking that he be allowed to fully discharge the duties of a Congressman,
including attendance at legislative sessions and committee meetings
despite his having been convicted in the first instance of a non-bailable
offense.
The issue raised is one of first impression.
Does membership in Congress exempt an accused from statutes and
rules which apply to validly incarcerated persons in general? In
answering the query, we are called upon to balance relevant and
conflicting factors in the judicial interpretation of legislative privilege in
the context of penal law.
The accused-appellant’s "Motion To Be Allowed To Discharge Mandate
As Member of House of Representatives" was filed on the grounds that
– same general laws governing all persons still to be tried or whose
1. Accused-appellant’s reelection being an
expression of popular will cannot be rendered
inutile by any ruling, giving priority to any right or
interest – not even the police power of the State.
2. To deprive the electorate of their elected
representative amounts to taxation without
representation.
3. To bar accused-appellant from performing his
duties amounts to his suspension/removal and
mocks the renewed mandate entrusted to him by
the people.
4. The electorate of the First District of Zamboanga
del Norte wants their voice to be heard.
5. A precedent-setting U.S. ruling allowed a
detained lawmaker to attend sessions of the U.S.
Congress.
6. The House treats accused-appellant as a bona
fide member thereof and urges a co-equal branch
of government to respect its mandate.
7. The concept of temporary detention does not
necessarily curtail the duty of accused-appellant to
discharge his mandate.
8. Accused-appellant has always complied with the
conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the "mandate of sovereign will."
He states that the sovereign electorate of the First District of Zamboanga
del Norte chose him as their representative in Congress. Having been re-
elected by his constituents, he has the duty to perform the functions of a
Congressman. He calls this a covenant with his constituents made
possible by the intervention of the State. He adds that it cannot be
defeated by insuperable procedural restraints arising from pending
criminal cases.
True, election is the expression of the sovereign power of the people. In
the exercise of suffrage, a free people expects to achieve the continuity
of government and the perpetuation of its benefits. However, inspite of
its importance, the privileges and rights arising from having been elected
may be enlarged or restricted by law. Our first task is to ascertain the
applicable law.
We start with the incontestable proposition that all top officials of
Government-executive, legislative, and judicial are subject to the
majesty of law. There is an unfortunate misimpression in the public mind
that election or appointment to high government office, by itself, frees
the official from the common restraints of general law. Privilege has to
be granted by law, not inferred from the duties of a position. In fact, the
higher the rank, the greater is the requirement of obedience rather than
exemption.
The immunity from arrest or detention of Senators and members of the
House of Representatives, the latter customarily addressed as
Congressmen, arises from a provision of the Constitution. The history of
the provision shows that the privilege has always been granted in a
restrictive sense. The provision granting an exemption as a special
privilege cannot be extended beyond the ordinary meaning of its terms.
It may not be extended by intendment, implication or equitable
considerations.
The 1935 Constitution provided in its Article VI on the Legislative
Department:
Sec. 15. The Senators and Members of the House of
Representatives shall in all cases except treason,
felony, and breach of the peace be privileged from
arrest during their attendance at the sessions of
Congress, and in going to and returning from the
same; xxx.
Because of the broad coverage of felony and breach of the peace, the
exemption applied only to civil arrests. A congressman like the accused-
appellant, convicted under Title Eleven of the Revised Penal Code could
not claim parliamentary immunity from arrest. He was subject to the
convictions were pending appeal.
The 1973 Constitution broadened the privilege of immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang
Pambansa shall, in all offenses punishable by not
more than six years imprisonment, be privileged
from arrest during his attendance at its sessions
and in going to and returning from the same.
For offenses punishable by more than six years imprisonment, there was
no immunity from arrest. The restrictive interpretation of immunity and
the intent to confine it within carefully defined parameters is illustrated
by the concluding portion of the provision, to wit:
xxx but the Batasang Pambansa shall surrender the
member involved to the custody of the law within
twenty four hours after its adjournment for a recess
or for its next session, otherwise such privilege shall
cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the
obligation of Congress to surrender the subject Congressman to the
custody of the law. The requirement that he should be attending
sessions or committee meetings has also been removed. For relatively
minor offenses, it is enough that Congress is in session.
The accused-appellant argues that a member of Congress’ function to
attend sessions is underscored by Section 16 (2), Article VI of the
Constitution which states that–
(2) A majority of each House shall constitute a
quorum to do business, but a smaller number may
adjourn from day to day and may compel the
attendance of absent Members in such manner,
and under such penalties, as such House may
provide.
However, the accused-appellant has not given any reason why he should
be exempted from the operation of Section 11, Article VI of the
Constitution. The members of Congress cannot compel absent members
to attend sessions if the reason for the absence is a legitimate one. The
confinement of a Congressman charged with a crime punishable by
imprisonment of more than six months is not merely authorized by law,
it has constitutional foundations.
Accused-appellant’s reliance on the ruling in  Aguinaldo v. Santos[2],
which states, inter alia, that –
The Court should never remove a public officer for
acts done prior to his present term of office. To do
otherwise would be to deprive the people of their
right to elect their officers. When a people have
elected a man to office, it must be assumed that
they did this with the knowledge of his life and
character, and that they disregarded or forgave his
65
 fault or misconduct, if he had been guilty of any. It
is not for the Court, by reason of such fault or
misconduct, to practically overrule the will of the
people.
will not extricate him from his predicament. It can be readily seen in the
above-quoted ruling that the Aguinaldo case involves the administrative
removal of a public officer for acts done prior to his present term of
office. It does not apply to imprisonment arising from the enforcement
of criminal law. Moreover, in the same way that preventive suspension
is not removal, confinement pending appeal is not removal. He remains
a congressman unless expelled by Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after
final conviction, is public self-defense. Society must protect itself. It also
serves as an example and warning to others.
A person charged with crime is taken into custody for purposes of the
administration of justice. As stated in United States v. Gustilo,[3] it is the
injury to the public which State action in criminal law seeks to redress. It
is not the injury to the complainant. After conviction in the Regional Trial
Court, the accused may be denied bail and thus subjected to
incarceration if there is risk of his absconding.[4]
The accused-appellant states that the plea of the electorate which voted
him into office cannot be supplanted by unfounded fears that he might
escape eventual punishment if permitted to perform congressional
duties outside his regular place of confinement.
It will be recalled that when a warrant for accused-appellant’s arrest was
issued, he fled and evaded capture despite a call from his colleagues in
the House of Representatives for him to attend the sessions and to
surrender voluntarily to the authorities. Ironically, it is now the same
body whose call he initially spurned which accused-appellant is invoking
to justify his present motion. This can not be countenanced because, to
reiterate, aside from its being contrary to well-defined Constitutional
restrains, it would be a mockery of the aims of the State’s penal system.
Accused-appellant argues that on several occasions, the Regional Trial
Court of Makati granted several motions to temporarily leave his cell at
the Makati City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on
Ethics held at the Batasan Complex, Quezon City,
on the issue of whether to expel/suspend him from
the House of Representatives;
b) to undergo dental examination and treatment at
the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the
Makati Medical Center, Makati City;
d) to register as a voter at his hometown in Dapitan
City. In this case, accused-appellant commuted by
chartered plane and private vehicle.
He also calls attention to various instances, after his transfer at the New
Bilibid Prison in Muntinlupa City, when he was likewise
allowed/permitted to leave the prison premises, to wit:
a) to join "living-out" prisoners on "work-volunteer
program" for the purpose of 1) establishing a
mahogany seedling bank and 2) planting mahogany
trees, at the NBP reservation. For this purpose, he
was assigned one guard and allowed to use his own
vehicle and driver in going to and from the project
area and his place of confinement.
b) to continue with his dental treatment at the
clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in
Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a
member of Congress. Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the discretion of the
authorities or upon court orders.
What the accused-appellant seeks is not of an emergency nature.
Allowing accused-appellant to attend congressional sessions and
committee meetings for five (5) days or more in a week will virtually
make him a free man with all the privileges appurtenant to his position.
Such an aberrant situation not only elevates accused-appellant’s status
to that of a special class, it also would be a mockery of the purposes of
the correction system. Of particular relevance in this regard are the
following observations of the Court in Martinez v. Morfe:[5]
The above conclusion reached by this Court is
bolstered and fortified by policy considerations.
There is, to be sure, a full recognition of the
necessity to have members of Congress, and
likewise delegates to the Constitutional Convention,
entitled to the utmost freedom to enable them to
discharge their vital responsibilities, bowing to no
other force except the dictates of their conscience.
Necessarily the utmost latitude in free speech
should be accorded them. When it comes to
freedom from arrest, however, it would amount to
the creation of a privileged class, without
justification in reason, if notwithstanding their
liability for a criminal offense, they would be
considered immune during their attendance in
Congress and in going to and returning from the
same. There is likely to be no dissent from the
proposition that a legislator or a delegate can
perform his functions efficiently and well, without
the need for any transgression of the criminal law.
Should such an unfortunate event come to pass, he
is to be treated like any other citizen considering
that there is a strong public interest in seeing to it
that crime should not go unpunished. To the fear
that may be expressed that the prosecuting arm of
the government might unjustly go after legislators
belonging to the minority, it suffices to answer that
precisely all the safeguards thrown around an
accused by the Constitution, solicitous of the rights
of an individual, would constitute an obstacle to
such an attempt at abuse of power. The
presumption of course is that the judiciary would
remain independent. It is trite to say that in each
and every manifestation of judicial endeavor, such
a virtue is of the essence.
The accused-appellant avers that his constituents in the First District of
Zamboanga del Norte want their voices to be heard and that since he is
treated as bona fide member of the House of Representatives, the latter
urges a co-equal branch of government to respect his mandate. He also
claims that the concept of temporary detention does not necessarily
curtail his duty to discharge his mandate and that he has always
complied with the conditions/restrictions when he is allowed to leave
jail.
We remain unpersuaded.
No less than accused-appellant himself admits that like any other
member of the House of Representatives "[h]e is provided with a
congressional office situated at Room N-214, North Wing Building,
House of Representatives Complex, Batasan Hills, Quezon City, manned
by a full complement of staff paid for by Congress. Through [an] inter-
department coordination, he is also provided with an office at the
Administration Building, New Bilibid Prison, Muntinlupa City, where he
attends to his constituents." Accused-appellant further admits that while
under detention, he has filed several bills and resolutions. It also appears
that he has been receiving his salaries and other monetary benefits.
Succinctly stated, accused-appellant has been discharging his mandate
as a member of the House of Representative consistent with the
restraints upon one who is presently under detention. Being a detainee,
accused-appellant should not even have been allowed by the prison
authorities at the National Pentientiary to perform these acts.
When the voters of his district elected the accused-appellant to
Congress, they did so with full awareness of the limitations on his
freedom of action. They did so with the knowledge that he could achieve
66
only such legislative results which he could accomplish within the Premises considered, we are constrained to rule against the accused-
confines of prison. To give a more drastic illustration, if voters elect a appellant’s claim that re-election to public office gives priority to any
person with full knowledge that he is suffering from a terminal illness, other right or interest, including the police power of the State.
they do so knowing that at any time, he may no longer serve his full WHEREFORE, the instant motion is hereby DENIED.
term in office. SO ORDERED.
In the ultimate analysis, the issue before us boils down to a question of
constitutional equal protection.
The Constitution guarantees: "x x x nor shall any person be denied the
equal protection of laws."[6] This simply means that all persons similarly
situated shall be treated alike both in rights enjoyed and responsibilities
imposed.[7] The organs of government may not show any undue
favoritism or hostility to any person. Neither partiality nor prejudice
shall be displayed.
Does being an elective official result in a substantial distinction that
allows different treatment? Is being a Congressman a substantial
differentiation which removes the accused-appellant as a prisoner from
the same class as all persons validly confined under law?
The performance of legitimate and even essential duties by public
officers has never been an excuse to free a person validly in prison. The
duties imposed by the "mandate of the people" are multifarious. The
accused-appellant asserts that the duty to legislate ranks highest in the
hierarchy of government. The accused-appellant is only one of 250
members of the House of Representatives, not to mention the 24
members of the Senate, charged with the duties of legislation. Congress
continues to function well in the physical absence of one or a few of its
members. Depending on the exigency of Government that has to be
addressed, the President or the Supreme Court can also be deemed the
highest for that particular duty. The importance of a function depends
on the need for its exercise. The duty of a mother to nurse her infant is
most compelling under the law of nature. A doctor with unique skills has
the duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must
maintain peace and order. Never has the call of a particular duty lifted a
prisoner into a different classification from those others who are validly
restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise,
insidious discriminations are made in favor of or against groups or types
of individuals.[8]
The Court cannot validate badges of inequality. The necessities imposed
by public welfare may justify exercise of government authority to
regulate even if thereby certain groups may plausibly assert that their
interests are disregarded.[9]
We, therefore, find that election to the position of Congressman is not a
reasonable classification in criminal law enforcement. The functions and
duties of the office are not substantial distinctions which lift him from
the class of prisoners interrupted in their freedom and restricted in
liberty of movement. Lawful arrest and confinement are germane to the
purposes of the law and apply to all those belonging to the same class. [10]
Imprisonment is the restraint of a man’s personal liberty; coercion
exercised upon a person to prevent the free exercise of his power of
locomotion.[11]
More explicitly, "imprisonment" in its general sense, is the restraint of
one’s liberty. As a punishment, it is restraint by judgment of a court or
lawful tribunal, and is personal to the accused. [12] The term refers to the
restraint on the personal liberty of another; any prevention of his
movements from place to place, or of his free action according to his
own pleasure and will.[13] Imprisonment is the detention of another
against his willdepriving him of his power of locomotion[14] and it "[is]
something more than mere loss of freedom. It includes the notion
of restraint within limits defined by wall or any exterior barrier."[15]
It can be seen from the foregoing that incarceration, by its nature,
changes an individual’s status in society. [16] Prison officials have the
difficult and often thankless job of preserving the security in a
potentially explosive setting, as well as of attempting to provide EN BANC
rehabilitation that prepares inmates for re-entry into the social  
mainstream. Necessarily, both these demands require the curtailment  
and elimination of certain rights.[17] MILES ANDREW MARI ROCES,                   G.R. NO. 167499
67
                             Petitioner,
P counsel on May 8, 2004.[9]
resent:
 
 
DAVIDE,
JR., C.J.,
                                                             PUNO,
                                                                      PANGANIBAN,
                                                                      QUISUMBING,
                                                                      YNARES-SANTIAGO,
                    - versus -                                    SANDOVAL-GUTIERREZ,
                                                                      CARPIO,
                                                                      AUSTRIA-MARTINEZ,
                                                                      CORONA,
                                                                      CARPIO MORALES,
                                                                      CALLEJO, SR.,
                                                                      AZCUNA,         certified list of candidates.[13] Among the signatories to the Resolution
                                                                      TINGA,
                                                                      CHICO-NAZARIO, and
                                                                      GARCIA, JJ.
HOUSE OF REPRESENTATIVES              Racing against time or on May 11, 2004, the spouses Ang
ELECTORAL TRIBUNAL and                Promulgated:
MARIA ZENAIDA B. ANG PING,
                             Respondents.                     September 15, 2005
 
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
 
DECISION
PUNO, J.:
If there is a right, there must be a remedy is an old legal
adage. The case at bar provides the perfect setting for the application of
this adage which is a demand for simple justice. The facts will show how
the respondent’s right to run for a public office has been frustrated by
unscrupulous officials in charge of the sanctity of our electoral process.
Petitioner Miles Roces (Roces) and former Congressman Harry
Ang Ping (Mr. Ang Ping) filed their respective certificates of candidacy
(COCs) for the position of Representative for the 3 rd Congressional
District of Manila in the May 2004 elections.
On January 5, 2004, a registered voter of Manila named
Alejandro Gomez questioned Mr. Ang Ping’s candidacy before the
COMELEC through a petition to deny due course or cancel his COC. [1] The
petition alleged that Mr. Ang Ping misrepresented himself to be a
natural-born citizen, hence was disqualified for the position.
Acting for the COMELEC First Division, Commissioner Virgilio
O. Garcilliano issued an order on April 30, 2004scheduling
the promulgation of its resolution on May 5, 2004.[2] Two
days before the scheduled promulgation or on May 3, 2004, Mr. Ang
Ping filed with the COMELEC a Sworn Declaration of Withdrawal of his
COC.[3] The next day, May 4, 2004, the General Counsel for the
Nationalist Peoples Coalition, the political party of Mr. Ang Ping, sought
that Mr. Ang Ping’s wife, Ma. Zenaida Ang Ping (Mrs. Ang Ping),
substitute for him.[4] Mr. Ang Ping also filed a motion to cancel the
scheduled promulgation and dismiss the petition to deny due course or
cancel his COC on the same date. [5] On May 5, 2004, Commissioner
Resurreccion Z. Borra deferred the promulgation for lack of quorum as
he was the sole Commissioner in attendance.[6]
Despite all these developments, the COMELEC First
Division, through Commissioners Rufino S.B. Javier, Resurreccion Z.
Borra, and Virgilio O. Garcilliano, issued a resolution granting the
petition to deny due course to Mr. Ang Ping’s COC and ordering the
Board of Election Inspectors of Manila not to count any vote cast in his
favor.[7] It ruled that theresolution which was originally scheduled for
promulgation by Commissioner Garcilliano on May 5, 2004 was instead
promulgated on April 30, 2004, the same date that the notice of
promulgation was issued.[8] The resolution was served on Mr. Ang Ping’s
Compounding the woes of Mr. Ang Ping, and despite the
deferment of the promulgation by Commissioner Borra at a hearing
on May 5, 2004, the COMELEC First Division issued on the same
date an order denying Mr. Ang Ping’s motion to dismiss. It held that the
motion to dismiss was filed after the “promulgation” of the April 30,
2004 resolution granting the petition to deny due course to Mr. Ang
Ping’s COC.[10] On May 9, 2004, and before the expiration of the five-day
reglementary period,[11] Mr. Ang Ping moved for reconsideration of
the April 30, 2004 resolution and the case was elevated to the
COMELEC en banc.[12]
While the case was still with the COMELEC First Division, or
on May 8, 2004, the COMELEC en banc issuedResolution No.
6823, declaring moot Mr. Ang Ping’s Affidavit of Withdrawal, denying
due course to the substitute COC of Mrs. Ang Ping and ordering the
Regional Election Director to delete Mr. Ang Ping’s name from the
were Commissioners Javier, Borra, and Garcilliano of the COMELEC
First Division before which the petition to deny due course was still
pending.[14] Mr. Ang Ping had no knowledge of the resolution.
Ping repaired to this Court and filed a petition for certiorari with prayer
for temporary restraining order, status quo order and/or writ of
preliminary injunction docketed as G.R. No. 163259, assailing COMELEC
Resolution No. 6823. [15] The next day or on May 12, 2004, this Court
issued a resolution requiring Roces to comment and denied the issuance
of an order suspending the proclamation.[16]
On the election day itself, the Manila City Board of
Canvassers resolved not to canvass the votes for Mr. or Mrs. Ang
Ping citing COMELEC Resolution No. 6823.[17] On May 15, 2004, after
counting only 6,347 votes out of the 150,387 registered voters in the
district, it proclaimed Roces winner.[18] The spouses Ang Ping appealed
the Board resolution to the COMELEC en banc[19] and filed a petition to
annul the proclamation [20] but these were dismissed by COMELEC’s
Resolution No. 7257 and Omnibus Order of July 6, 2004.[21]
On May 19, 2004, Roces filed his Comment to the petition of
spouses Ang Ping with this Court. [22] On May 25, 2004, this Court
required the spouses Ang Ping to file their consolidated reply to the
Comment.[23]
On May 24, 2004, Mrs. Ang Ping filed an Election Protest Ad
Cautelam with the House of Representatives Electoral Tribunal (HRET),
which was docketed as HRET Case No. 04-004. [24] In her election protest,
Mrs. Ang Ping alleged, among others, that COMELEC Resolution No.
6823 was a “glaring case of deprivation” of Mr. and Mrs. Ang Ping’s right
to “elevate SPC 04-224 to the Commission en banc” and that the
COMELEC’s April 30, 2004 resolution was irregularly promulgated. Roces
filed his answer alleging, among others, that the HRET has no jurisdiction
over the case.[25]
On July 16, 2004, the spouses Ang Ping filed their consolidated
reply with this Court. [26] On July 27, 2004, we required Mrs. Ang Ping to
show cause why the petition in G.R. No. 163259 should not be dismissed
in view of the filing and pendency of HRET Case No. 04-004. [27] In her
Compliance filed on July 30, 2004, Mrs. Ang Ping explained that the issue
of whether the COMELEC gravely abused its discretion in issuing the
COMELEC Resolution No. 6823 may be ventilated as one of the issues to
be settled in the HRET Election Protest since the non-canvassing of the
“Ang Ping votes” and the proclamation of petitioner Roces were
founded on COMELEC Resolution No. 6823 and were raised as the
principal issues in the HRET Election Protest. This notwithstanding, the
spouses Ang Ping manifested that they will “submit to any disposal
which this Honorable Court may find appropriate under the above
circumstances” and “would defer and will accept any order/resolution of
the Honorable Court that would resolve to dismiss the instant
petition/controversy, but allowing them to pursue and concentrate
their time and effort in the above-mentioned Ad Cautela  HRET Election
68
Protest Case, which they intend to convert to a REGULAR PROTEST
case, in such an event.”[28]
On August 10, 2004, this Court dismissed G.R. No. 163259 in
view of the pending HRET protest filed by Mrs. Ang Ping.[29] The
resolution eventually became final and executory. [30] Thereafter, Mrs.
Ang Ping filed in the HRET a motion to convert the ad cautelam protest
to a regular protest. The HRET granted the motion on September 9,
2004.[31]
In the HRET, Roces filed a motion to dismiss the protest,
assailing in the main the personality of Mrs. Ang Ping to file the protest.
It also raised the following issues: (1) whether the HRET has jurisdiction
to review COMELEC Resolution No. 6823; (2) whether Mrs. Ang Ping can
validly substitute for Mr. Ang Ping; (3) whether the protest may be
resolved by mere canvass of election returns; (4) whether the
proceeding is a “protest” considering that it questions proceedings held
before the Manila City Board of Canvassers; (5) whether Mrs. Ang Ping
could claim any right to the ballots cast considering she was not listed in
the certified list of COMELEC candidates; (6) whether the petition is
sufficient in form and substance despite failing to state the specific
precincts protested; and (7) whether forum shopping was committed.
After extensive oral arguments, the HRET denied Roces’s
motion to dismiss on March 3, 2005. It ruled that Mrs. Ang Ping was
a proper party to file the protest against Roces since: (1) there was no
final COMELEC resolution disqualifying or denying due course to the COC
of Mr. Ang Ping, thus her substitution for the latter was legally
permissible under the Omnibus Election Code; [32] (2) she was one of the
candidates voted for during election day in the 3 rd District of Manila;
[33]
 and (3) the COMELEC Order of May 5, 2004 was of questionable
validity for the reason that: (a) it was issued in violation of its April 30,
2004 resolution setting the promulgation for May 5, 2004 and despite
the fact that the records had not yet reached the COMELEC en banc;
[34]
 and (b) there was no prior notice and hearing in violation of Section
78 of the Omnibus Election Code.[35] Roces’s motion for reconsideration
of the HRET order was denied on March 21, 2005.
Roces then filed the present petition for certiorari assailing
the two preceding resolutions of the HRET. [36] The issues for
resolution are: (1) whether or not the HRET committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it ruled that
Mrs. Ang Ping is a proper party to file the election protest despite the
denial in due course and cancellation of her COC under COMELEC
Resolution No. 6823; and (2) whether or not HRET has jurisdiction to
review a resolution or order of the COMELEC and/or declare the same as
void and disregard or set it aside.
After several months or on April 28, 2005, the COMELEC en
banc issued a resolution denying Mr. Ang Ping’s motion for
reconsideration of the COMELEC’s April 30, 2004 resolution for being
moot and academic due to the petitioner’s proclamation, Mr. Ang Ping’s
withdrawal of his candidacy and Mrs. Ang Ping’s attempt to substitute
for her husband.[37]
We hold that the HRET did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it denied the
petitioner’s motion to dismiss for the following reasons:
First.   The HRET is the sole judge of all contests relating to
the election, returns, and qualifications of the members of the House of
Representatives[38] and has the power to promulgate procedural rules to
govern proceedings brought before it. [39] This exclusive jurisdiction
includes the power to determine whether it has the authority to hear
and determine the controversy presented, and the right to decide
whether that state of facts exists which confers jurisdiction, as well as all
other matters which arise in the case legitimately before it.
[40]
 Accordingly, it has the power to hear and determine, or inquire into,
the question of its own jurisdiction, both as to parties and as to subject
matter, and to decide all questions, whether of law or fact, the
decision of which is necessary to determine the question of
jurisdiction.[41] One of the three essential elements of jurisdiction is
thatproper parties must be present.[42] Consequently, the HRET merely
exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was
a proper party to contest the election of Roces.
Second.      There is no dispute that to support his motion to
dismiss, Roces offered as evidence the COMELEC resolutions denying
due course to Mrs. Ang Ping’s COC. In doing so, Roces submitted to the
HRET the admissibility and validity of these resolutions and the HRET
cannot be faulted in reviewing the said resolutions especially for the
purpose of determining whether Roces was able to discharge his burden
of proving that Mrs. Ang Ping is not the proper party to assail his
election. In passing upon the COMELEC resolutions especially for that
purpose, it cannot be said that the HRET usurped the jurisdiction of the
COMELEC.
On the merits of the HRET ruling, we hold that the HRET did
not abuse its discretion in holding that Mrs. Ang Ping is a proper party to
contest the election of Roces. Under COMELEC rules, the procedure of
promulgation of a decision or resolution is as follows:
SECTION 5.         Promulgation. — The
promulgation of a decision or resolution of the
Commission or a Division shall be made on a date
previously fixed, of which notice shall be served in
advance upon the parties or their attorneys
personally or by registered mail or by telegram.[43]
 
Promulgation is important because it determines when
the reglementary period begins to toll. In the case at bar,Commissioner
Garcilliano fixed the promulgation of its resolution whether to give due
course to the candidacy of Mr. Ang Ping onMay 5, 2004.
For mysterious reasons, the COMELEC First Division of
Commissioner Garcillano did not promulgate the resolution onMay 5,
2004 in accordance with its notice of promulgation. In violation of the
abovecited rule, and despite the deferment of the promulgation by
Commissioner Borra to a date to be set by the COMELEC First
Division, the resolution was deemed “promulgated” by the COMELEC
on April 30, 2004 when it was filed with the clerk of court. The April 30,
2004 COMELEC resolution was received by Mr. Ang Ping’s counsel only
on May 8, 2004.[44]
The mysterious April 30, 2004 resolution was thereafter used
to run roughshod over the rights of the Ang Pings. Thus, on May 5,
2004, the COMELEC First Division of Commissioner Garcilliano denied
Mr. Ang Ping’s motion to dismiss. Allegedly, Mr. Ang Ping’s motion was
filed after the April 30, 2004 resolution.
To make matters worse, the COMELEC en banc  usurped the
jurisdiction of the COMELEC First Division when it issued Resolution
No. 6823 on May 8, 2004 which ordered the deletion of Mr. Ang Ping’s
name from the Certified List of Candidates and denied the spouses Ang
Ping’s motions to withdraw and substitute despite the fact that: (1) the
reglementary period of Mr. Ang Ping to appeal had not yet expired; and
(2) Mr. Ang Ping had filed a motion for reconsideration of the preceding
order on May 10, 2004 within the five-day reglementary
period. Nowhere is it provided in the law that the COMELEC en
banc has the power to assume jurisdiction motu proprio  over a
petition to deny due course pending before a division of the
Commission. Diametrically opposed thereto are the provisions of the
Constitution and COMELEC Rules of Procedure which provide
that motions for reconsideration of the COMELEC division’s decisions,
resolutions, orders or rulings must first be filed in the Divisions before
the Commission en banc may take cognizance thereof, viz.:
SECTION 3.         The Commission on
Elections may sit en banc  or in two divisions, and
shall promulgate its rules of procedure in order to
expedite disposition of election cases, including
pre-proclamation controversies. All such election
cases shall be heard and decided in division,
provided that motions for reconsideration of
decisions shall be decided by the Commission en
banc.[45]
69
 SECTION 3.         The Commission Sitting
in Divisions.  — The Commission shall sit in two (2)
Divisions to hear and decide protests or petitions
in ordinary actions, special actions, special cases,
provisional remedies, contempt and special
proceedings except in accreditation of citizens'
arms of the Commission.[46]
 
SECTION 5.         How Motion for
Reconsideration Disposed Of. — Upon the filing of a
motion to reconsider a decision, resolution, order
or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing
thereof, notify the Presiding Commissioner. The
latter shall within two (2) days thereafter certify
the case to the Commission en banc.
 
SECTION 6.         Duty of Clerk of Court of
Commission to Calendar Motion for
Resolution.  — The Clerk of Court concerned shall
calendar the motion for reconsideration for the
resolution of the Commission en bancwithin ten
(10) days from the certification thereof. (Emphases
supplied)[47]
 
 
This premature COMELEC Resolution No. 6823 was then
used on May 12, 2004, or on the election day itself, by the Manila City
Board of Canvassers as the basis of its resolution not to canvass the
votes for Mr. or Mrs. Ang Ping.  It then proclaimed Roces the winner
despite having counted only 6,347 votes out of the 150,387 registered
voters of the district.[48]Following these highly suspect resolutions,
Roces was proclaimed winner on May 15, 2004. All told, it cannot be
denied that theeffect of COMELEC en banc  Resolution No. 6823 was
to execute the April 30, 2004 resolution of its First Division which, at
that time, had not yet become final and executory. These irregularities
cannot be swept away by the belated COMELEC en banc’s April 28,
2005 resolution denying Mr. Ang Ping’s motion for reconsideration
dated May 10, 2004.[49]
It is argued that Mrs. Ang Ping’s motions for reconsideration
and appeals “cured” whatever defects occurred at the COMELEC.
Citing T.H. Valderama & Sons, Inc. v. Drilon,[50] Roces points to the
petition for certiorari filed with this Court on May 11, 2004 by Mrs. Ang
Ping assailing COMELEC Resolution No. 6823 and her acquiescence to
any “appropriate action taken (by the Court) including the dismissal of
the above petition.” Contrary to Roces’s posture, Valderama and its kin
required that the aggrieved party be given an opportunity to be
heard. In the case at bar, it ought to be emphasized that the private
respondent wassystematically denied the opportunity to be heard. The
resolution of the COMELEC’s First Division was made before its priorily
set date of promulgation, deemed final and executory by the
COMELEC en banc  in Resolution No. 6823 before expiry of the
reglementary period, and executed by the Manila City Board of
Canvassers. The petition for certiorari filed by Mrs. Ang Ping challenged
these resolutions and could not have cured these blatant violations of
her right to due process.  In truth, this Court referred the case of Mrs.
Ang Ping to the HRET where she has filed a protest ad cautelam.
There is no iota of doubt that the COMELEC’s resolutions
are void ab initio for violating Mrs. Ang Ping’s constitutional right to due
process. Judgments entered in a proceeding failing to comply with
procedural due process are void, as is one entered by a court acting in a
manner inconsistent with due process. [51] A void judgment is defined as
one that, from its inception, is a complete nullity and without legal
effect. A void judgment is not entitled to the respect accorded to, and is
attended by none of the consequences of, a valid adjudication. Indeed, a
void judgment need not be recognized by anyone, but may be entirely
disregarded or declared inoperative by any tribunal in which effect is
sought to be given to it. It has no legal or binding force or efficacy for
any purpose or at any place. It cannot affect, impair, or create rights, nor
can any rights be based on it. All proceedings founded on the void
judgment are themselves regarded as invalid and ineffective for any
purpose.[52] Needless to stress, the HRET did not commit grave abuse of
discretion in assuming jurisdiction over the election protest as the
COMELEC Resolution dated April 30, 2004, Order of May 5, 2004, and
Resolution No. 6823 were void  ab initio.
Third.   Petitioner contends that the HRET cannot review
decisions of the COMELEC and that COMELEC decisions, orders, or
rulings may be solely reviewed by the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof.
[53]
 It is true that generally, the method of assailing a judgment or order
of the COMELEC is via  petition for certiorari.[54] As aforestated, however,
it was petitioner who submitted these resolutions to the HRET as proofs
that Mrs. Ang Ping was not a proper party. These same resolutions were
collaterally attacked by Mrs. Ang Ping before the HRET when she
alleged that these violated her right to due process. [55] A void judgment
or resolution may be impeached through collateral attack.[56]A direct
attack on a judgment or resolution is defined as an attempt to avoid or
correct it in some manner provided by law, in a proceeding instituted for
that very purpose, in the same action and in the same tribunal.
Conversely, a collateral attack is an attempt to impeach the judgment or
resolution by matters dehors the record, before a tribunal other than
the one in which it was rendered, in an action other than that in which it
was rendered; an attempt to avoid, defeat, or evade it, or deny its
force and effect, in some incidental proceeding not provided by law for
the express purpose of attacking it; any proceeding which is not
instituted for the express purpose of annulling, correcting, or
modifying such decree; an objection, incidentally raised in the course of
the proceeding, which presents an issue collateral to the issues made by
the pleadings.[57] The rule that a void judgment or decree is subject to
collateral attack at any time is based upon a court's inherent authority to
expunge void acts from its records. [58]  The void resolutions of the
COMELEC, especially the April 30, 2004 resolution issued by its First
Division, cannot oust the HRET of its jurisdiction over the case at bar.
Fourth.  We hasten to add that judgments, orders and
resolutions should only be declared void in the most exceptional
circumstances due to detrimental effects on the doctrine of finality of
judgments. The circumstances of this case, however, areunique in that
the private respondent was denied due process and was forced to seek
justice in the HRET. In fact, it was this Court that referred the private
respondent to the HRET when it dismissed the latter’s petition in G.R.
No. 163259 on the ground of the pendency of HRET Case No. 04-
004. To grant the petition now would effectively foreclose the private
respondent’s access to any remedy despite violation of her right to due
process.
IN VIEW WHEREOF, the petition is dismissed.  The temporary
restraining order previously issued by the Court is lifted.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
70
 EN BAN
G.R. No. 174340             October 17, 2006
IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS
CORPUS OF CAMILO L. SABIO,petitioner,
J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,  Philippine Communications Satellite Corporation (PHILCOMSAT), and
vs.
HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman,
and the HONORABLE MEMBERS OF THE COMMITTEE ON
GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and THE
COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE
SENATOR JUAN PONCE-ENRILE, in his official capacity as Member,
HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-
AT-ARMS, and the SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174318             October 17, 2006
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and
CAMILO L. SABIO, Chairman, NARCISO S. NARIO, RICARDO M. ABCEDE,
TERESO L. JAVIER and NICASIO A. CONTI, Commissioners, MANUEL
ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat Holdings
Corporation, petitioners,
vs.
RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE
COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC
ENTERPRISES, MEMBERS OF THE COMMITTEE ON PUBLIC SERVICES,
SENATOR JUAN PONCE-ENRILE, in his capacity as member of both said
Committees, MANUEL VILLAR, Senate President, THE SENATE
SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents.
x --------------------------------------------------------------------------- x
G.R. No. 174177             October 17, 2006
PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K.
LOKIN, JR., ROBERTO V. SAN JOSE, DELFIN P. ANGCAO, ROBERTO L.
ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN, petitioners,  the anomalous losses incurred by the Philippine Overseas
vs.
SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC
ENTERPRISES, its MEMBERS and CHAIRMAN, the HONORABLE
SENATOR RICHARD GORDON and SENATE COMMITTEE ON PUBLIC
SERVICES, its Members and Chairman, the HONORABLE SENATOR
JOKER P. ARROYO, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Two decades ago, on February 28, 1986, former President Corazon C.
Aquino installed her regime by issuing Executive Order (E.O.) No.
1,1 creating the Presidential Commission on Good Government (PCGG).
She entrusted upon this Commission the herculean task of recovering
the ill-gotten wealth accumulated by the deposed President Ferdinand E.
Marcos, his family, relatives, subordinates and close associates. 2 Section
4 (b) of E.O. No. 1 provides that: "No member or staff of the
Commission shall be required to testify or produce evidence in any
judicial, legislative or administrative proceeding concerning matters
within its official cognizance." Apparently, the purpose is to ensure
PCGG's unhampered performance of its task. 3
Today, the constitutionality of Section 4(b) is being questioned on the
ground that it tramples upon the Senate's power to conduct legislative
inquiry under Article VI, Section 21 of the 1987 Constitution, which
reads:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
The facts are undisputed.
On February 20, 2006, Senator Miriam Defensor Santiago introduced
Philippine Senate Resolution No. 455 (Senate Res. No. 455), 4 "directing
an inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC),
PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of Directors."
The pertinent portions of the Resolution read:
WHEREAS, in the last quarter of 2005, the representation and
entertainment expense of the PHC skyrocketed to P4.3
million, as compared to the previous year's mere P106
thousand;
WHEREAS, some board members established wholly owned
PHC subsidiary called Telecommunications Center, Inc. (TCI),
where PHC funds are allegedly siphoned; in 18 months, over
P73 million had been allegedly advanced to TCI without any
accountability report given to PHC and PHILCOMSAT;
WHEREAS, the Philippine Star, in its 12 February 2002 issue
reported that the executive committee of Philcomsat has
precipitately released P265 million and granted P125 million
loan to a relative of an executive committee member; to date
there have been no payments given, subjecting the company
to an estimated interest income loss of P11.25 million in 2004;
WHEREAS, there is an urgent need to protect the interest of
the Republic of the Philippines in the PHC, PHILCOMSAT, and
POTC from any anomalous transaction, and to conserve or
salvage any remaining value of the government's equity
position in these corporations from any abuses of power done
by their respective board of directors;
WHEREFORE, be it resolved that the proper Senate
Committee shall conduct an inquiry in aid of legislation, on
Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of
directors.
Adopted.
(Sgd) MIRIAM DEFENSOR SANTIAGO
On the same date, February 20, 2006, Senate Res. No. 455 was
submitted to the Senate and referred to theCommittee on
Accountability of Public Officers and Investigations and Committee on
Public Services. However, on March 28, 2006, upon motion of Senator
Francis N. Pangilinan, it was transferred to the Committee on
Government Corporations and Public Enterprises.5
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of
Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG,
one of the herein petitioners, inviting him to be one of the resource
persons in the public meeting jointly conducted by the Committee on
Government Corporations and Public Enterprises and Committee on
Public Services. The purpose of the public meeting was to deliberate on
Senate Res. No. 455.6
On May 9, 2006, Chairman Sabio declined the invitation because of prior
commitment.7 At the same time, he invoked Section 4(b) of E.O. No.
1 earlier quoted.
On August 10, 2006, Senator Gordon issued a Subpoena Ad
Testificandum,8 approved by Senate President Manuel Villar, requiring
Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio
Conti, Tereso Javier and Narciso Nario to appear in the public hearing
scheduled on August 23, 2006 and testify on what they know relative to
the matters specified in Senate Res. No. 455. Similar subpoenae were
issued against the directors and officers of Philcomsat Holdings
Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique L.
Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J.
Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina Alloba
and Johnny Tan.9
71
Again, Chairman Sabio refused to appear. In his letter to Senator Gordon
dated August 18, 2006, he reiterated his earlier position, invoking
Section 4(b) of E.O. No. 1. On the other hand, the directors and officers
of Philcomsat Holdings Corporation relied on the position paper they
previously filed, which raised issues on the propriety of legislative
inquiry.
Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority
of Senator Gordon, sent another notice10 to Chairman Sabio requiring
him to appear and testify on the same subject matter set on September
6, 2006. The notice was issued "under the same authority of
the Subpoena Ad Testificandum previously served upon (him) last 16
August 2006."
Once more, Chairman Sabio did not comply with the notice. He sent a
letter11 dated September 4, 2006 to Senator Gordon reiterating his
reason for declining to appear in the public hearing.
This prompted Senator Gordon to issue an Order dated September 7,
2006 requiring Chairman Sabio and Commissioners Abcede, Conti, Javier
and Nario to show cause why they should not be cited in contempt of
the Senate. On September 11, 2006, they submitted to the Senate their
Compliance and Explanation,12 which partly reads:
Doubtless, there are laudable intentions of the subject
inquiry in aid of legislation. But the rule of law requires that
even the best intentions must be carried out within the
parameters of the Constitution and the law. Verily, laudable
purposes must be carried out by legal methods. (Brillantes,
Jr., et al. v. Commission on Elections, En Banc  [G.R. No.
163193, June 15, 2004])
On this score, Section 4(b) of E.O. No. 1 should not be ignored
as it explicitly provides:
No member or staff of the Commission shall be
required to testify or produce evidence in any
judicial legislative or administrative proceeding
concerning matters within its official cognizance.
With all due respect, Section 4(b) of E.O. No. 1 constitutes a
limitation on the power of legislative inquiry, and a
recognition by the State of the need to provide protection to
the PCGG in order to ensure the unhampered performance of
its duties under its charter. E.O. No. 1 is a law, Section 4(b) of
which had not been amended, repealed or revised in any way.
To say the least, it would require both Houses of Congress and
Presidential fiat to amend or repeal the provision in
controversy. Until then, it stands to be respected as part of
the legal system in this jurisdiction. (As held in People v.
Veneracion, G.R. Nos. 119987-88, October 12, 1995:
Obedience to the rule of law forms the bedrock of our system
of justice. If judges, under the guise of religious or political
beliefs were allowed to roam unrestricted beyond boundaries
within which they are required by law to exercise the duties of
their office, then law becomes meaningless. A government of
laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system,
judges are guided by the Rule of Law, and ought to 'protect
and enforce it without fear or favor,' 4 [Act of Athens (1955)]
resist encroachments by governments, political parties, or
even the interference of their own personal beliefs.)
xxxxxx
Relevantly, Chairman Sabio's letter to Sen. Gordon dated
August 19, 2006 pointed out that the anomalous transactions
referred to in the P.S. Resolution No. 455 are subject of
pending cases before the regular courts, the Sandiganbayan
and the Supreme Court (Pending cases include: a.  Samuel
Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102;
b. Philippine Communications Satellite Corporation v. Manuel
Nieto, et al.; c. Philippine Communications Satellite
Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC,
Branch 61, Makati City; d. Philippine Communications Satellite
Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil
Case No. 04-1049) for which reason they may not be able to
testify thereon under the principle of sub judice. The laudable
objectives of the PCGG's functions, recognized in several cases
decided by the Supreme Court, of the PCGG will be put to
naught if its recovery efforts will be unduly impeded by a
legislative investigation of cases that are already pending
before the Sandiganbayan and trial courts.
In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767,
784 [1991]) the Honorable Supreme Court held:
"…[T]he issues sought to be investigated by the
respondent Committee is one over which
jurisdiction had been acquired by the
Sandiganbayan. In short, the issue has been pre-
empted by that court. To allow the respondent
Committee to conduct its own investigation of an
issue already before the Sandigabayan would not
only pose the possibility of conflicting judgments
between a legislative committee and a judicial
tribunal, but if the Committee's judgment were to
be reached before that of the Sandiganbayan, the
possibility of its influence being made to bear on
the ultimate judgment of the Sandiganbayan can
not be discounted.
xxxxxx
IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the
Commission decided not to attend the Senate inquiry to
testify and produce evidence thereat.
Unconvinced with the above Compliance and Explanation,
the Committee on Government Corporations and Public Enterprises and
the Committee on Public Services issued an Order13 directing Major
General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place
Chairman Sabio and his Commissioners under arrest for contempt of the
Senate. The Order bears the approval of Senate President Villar and
the majority of the Committees' members.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia
arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,
Mandaluyong City and brought him to the Senate premises where he
was detained.
Hence, Chairman Sabio filed with this Court a petition for habeas
corpus against the Senate Committee on Government Corporations and
Public Enterprises  and Committee on Public Services, their Chairmen,
Senators Richard Gordon and Joker P. Arroyo and Members. The case
was docketed as G.R. No. 174340.
Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and
the PCGG's nominees to Philcomsat Holdings Corporation, Manuel Andal
and Julio Jalandoni, likewise filed a petition for certiorari and prohibition
against the same respondents, and also against Senate President
Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the
entire Senate. The case was docketed as G.R. No. 174318.
Meanwhile, Philcomsat Holdings Corporation and its officers and
directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San
Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny
Tan filed a petition for certiorari and prohibition against the
Senate Committees on Government Corporations and Public
Enterprisesand Public Services, their Chairmen, Senators Gordon and
Arroyo, and Members. The case was docketed as G.R. No. 174177.
In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for
certiorari and prohibition) Chairman Sabio, Commissioners Abcede,
Conti, Nario, and Javier; and the PCGG's nominees Andal and Jalandoni
alleged: first, respondent Senate Committees disregarded Section 4(b) of
E.O. No. 1 without any justifiable reason; second, the inquiries
conducted by respondent Senate Committees are not in aid of
legislation; third, the inquiries were conducted in the absence of duly
published Senate Rules of Procedure Governing Inquiries in Aid of
Legislation; and fourth, respondent Senate Committees are not vested
with the power of contempt.
72
In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its
directors and officers alleged: first, respondent Senate Committees have
no jurisdiction over the subject matter stated in Senate Res. No.
455;second, the same inquiry is not in accordance with the
Senate's Rules of Procedure Governing Inquiries in Aid of
Legislation; third, the subpoenae against the individual petitioners are
void for having been issued without authority; fourth, the conduct of
legislative inquiry pursuant to Senate Res. No. 455 constitutes undue
encroachment by respondents into justiciable controversies over which
several courts and tribunals have already acquired jurisdiction; and fifth,
the subpoenae violated petitioners' rights to privacy and against self-
incrimination.
In their Consolidated Comment, the above-named respondents
countered: first, the issues raised in the petitions involve political
questions over which this Court has no jurisdiction; second, Section 4(b)
has been repealed by the Constitution; third, respondent Senate
Committees are vested with contempt power; fourth, Senate's Rules of
Procedure Governing Inquiries in Aid of Legislation have been duly
published; fifth, respondents have not violated any civil right of the
individual petitioners, such as their (a) right to privacy; and (b) right
against self-incrimination; and sixth, the inquiry does not constitute
undue encroachment into justiciable controversies.
During the oral arguments held on September 21, 2006, the parties were
directed to submit simultaneously their respective memoranda within a
non-extendible period of fifteen (15) days from date. In the meantime,
per agreement of the parties, petitioner Chairman Sabio was allowed to
go home. Thus, his petition for habeas corpushas become moot. The
parties also agreed that the service of the arrest warrants issued against
all petitioners and the proceedings before the respondent Senate
Committees are suspended during the pendency of the instant cases. 14
Crucial to the resolution of the present petitions is the fundamental
issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987
Constitution. On this lone issue hinges the merit of the contention of
Chairman Sabio and his Commissioners that their refusal to appear
before respondent Senate Committees is justified. With the resolution of
this issue, all the other issues raised by the parties have become
inconsequential.
Perched on one arm of the scale of justice is Article VI, Section 21 of the
1987 Constitution granting respondent Senate Committees the power of
legislative inquiry. It reads:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
On the other arm of the scale is Section 4(b) of E.O. No.1 limiting such
power of legislative inquiry by exempting all PCGG members or staff
from testifying in any judicial, legislative or administrative proceeding,
thus:
No member or staff of the Commission shall be required to
testify or produce evidence in any judicial, legislative or
administrative proceeding concerning matters within its
official cognizance.
To determine whether there exists a clear and unequivocal repugnancy
between the two quoted provisions that warrants a declaration that
Section 4(b) has been repealed by the 1987 Constitution, a brief
consideration of the Congress' power of inquiry is imperative.
The Congress' power of inquiry has been recognized in foreign
jurisdictions long before it reached our shores through McGrain v.
Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days,
American courts considered the power of inquiry as inherent in the
power to legislate. The 1864 case of Briggs v. MacKellar17explains the
breath and basis of the power, thus:
Where no constitutional limitation or restriction exists, it is
competent for either of the two bodies composing the
legislature to do, in their separate capacity, whatever may be
essential to enable them to legislate….It is well-established
principle of this parliamentary law, that either house may
institute any investigationhaving reference to its own
organization, the conduct or qualification of its members, its
proceedings, rights, or privileges or any matter affecting the
public interest upon which it may be important that it should
have exact information, and in respect to which it would be
competent for it to legislate. The right to pass laws,
necessarily implies the right to obtain information upon any
matter which may become the subject of a law. It is essential
to the full and intelligent exercise of the legislative
function….In American legislatures the investigation of
public matters before committees, preliminary to legislation,
or with the view of advising the house appointing the
committee is, as a parliamentary usage, well established as it
is in England, and the right of either house to compel
witnesses to appear and testify before its committee, and to
punish for disobedience has been frequently enforced….The
right of inquiry, I think, extends to other matters, in respect to
which it may be necessary, or may be deemed advisable to
apply for legislative aid.
Remarkably, in Arnault, this Court adhered to a similar theory. Citing
McGrain, it recognized that the power of inquiry is "an essential and
appropriate auxiliary to the legislative function," thus:
Although there is no provision in the "Constitution expressly
investing either House of Congress with power to make
investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process
to enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely
or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or
change; and where the legislation body does not itself
possess the requisite information – which is not infrequently
true – recourse must be had to others who possess it."
Dispelling any doubt as to the Philippine Congress' power of inquiry,
provisions on such power made their maiden appearance in Article VIII,
Section 12 of the 1973 Constitution.18 Then came the 1987 Constitution
incorporating the present Article VI, Section 12. What was therefore
implicit under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987 Constitutions. 19
Notably, the 1987 Constitution recognizes the power of investigation,
not just of Congress, but also of "any of its committee." This is
significant because it constitutes a direct conferral of investigatory
power upon the committees and it means that the mechanisms which
the Houses can take in order to effectively perform its investigative
function are also available to the committees. 20
It can be said that the Congress' power of inquiry has gained more solid
existence and expansive construal. The Court's high regard to such
power is rendered more evident in Senate v. Ermita, 21 where it
categorically ruled that"the power of inquiry is broad enough to cover
officials of the executive branch." Verily, the Court reinforced the
doctrine in Arnault that "the operation of government, being a
legitimate subject for legislation, is a proper subject for
investigation" and that "the power of inquiry is co-extensive with the
power to legislate."
Considering these jurisprudential instructions, we find Section 4(b)
directly repugnant with Article VI, Section 21. Section 4(b) exempts the
PCGG members and staff from the Congress' power of inquiry. This
cannot be countenanced. Nowhere in the Constitution is any provision
granting such exemption. The Congress' power of inquiry, being broad,
encompasses everything that concerns the administration of existing
laws as well as proposed or possibly needed statutes. 22 It even
extends "to government agencies created by Congress and officers
whose positions are within the power of Congress to regulate or even
abolish."23 PCGG belongs to this class.
73
Certainly, a mere provision of law cannot pose a limitation to the broad
power of Congress, in the absence of any constitutional basis.
Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of
the Constitution stating that: "Public office is a public trust. Public
officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives."
The provision presupposes that since an incumbent of a public office is
invested with certain powers and charged with certain duties pertinent
to sovereignty, the powers so delegated to the officer are held in trust
for the people and are to be exercised in behalf of the government or
of all citizens who may need the intervention of the officers. Such trust
extends to all matters within the range of duties pertaining to the
office. In other words, public officers are but the servants of the
people, and not their rulers.24
Section 4(b), being in the nature of an immunity, is inconsistent with the
principle of public accountability. It places the PCGG members and staff
beyond the reach of courts, Congress and other administrative bodies.
Instead of encouraging public accountability, the same provision only
institutionalizes irresponsibility and non-accountability. In Presidential
Commission on Good Government v. Peña,25 Justice Florentino P.
Feliciano characterized as "obiter" the portion of the majority opinion
barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for
damages filed against the PCGG and its Commissioners. He eloquently
opined:
The above underscored portions are, it is respectfully
submitted, clearly obiter. It is important to make clear that
the Court is not here interpreting, much less upholding as
valid and constitutional, the literal terms of Section 4 (a), (b)
of Executive Order No.1. If Section 4 (a) were given its literal
import as immunizing the PCGG or any member thereof from
civil liability "for anything done or omitted in the discharge of
the task contemplated by this Order," the constitutionality of
Section 4 (a) would, in my submission, be open to most
serious doubt. For so viewed, Section 4 (a) would
institutionalize the irresponsibility and non-accountability of
members and staff of the PCGG, a notion that is clearly
repugnant to both the 1973 and 1987 Constitution and a
privileged status not claimed by any other official of the
Republic under the 1987 Constitution. x x x.
xxxxxx
It would seem constitutionally offensive to suppose that a
member or staff member of the PCGG could not be required
to testify before the Sandiganbayan or that such members
were exempted from complying with orders of this Court.
Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section
4(b) has been frowned upon by this Court even before the filing of the
present petitions.
Corollarily, Section 4(b) also runs counter to the following constitutional
provisions ensuring the people's access to information:
Article II, Section 28
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full
public disclosure of all its transactions involving
public interest.
Article III, Section 7
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or decisions,
as well as to government research data used as
basis for policy development, shall be afforded the
citizen, subject to such limitations as may be
provided by law.
These twin provisions of the Constitution seek to promote transparency
in policy-making and in the operations of the government, as well as
provide the people sufficient information to enable them to exercise
effectively their constitutional rights. Armed with the right information,
citizens can participate in public discussions leading to the formulation
of government policies and their effective implementation. In Valmonte
v. Belmonte, Jr.27 the Court explained that an informed citizenry is
essential to the existence and proper functioning of any democracy,
thus:
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between
the government and the people. It is in the interest of the
State that the channels for free political discussion be
maintained to the end that the government may perceive and
be responsive to the people's will. Yet, this open dialogue can
be effective only to the extent that the citizenry is informed
and thus able to formulate its will intelligently. Only when the
participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit.
Consequently, the conduct of inquiries in aid of legislation is not only
intended to benefit Congress but also the citizenry. The people are
equally concerned with this proceeding and have the right to participate
therein in order to protect their interests. The extent of their
participation will largely depend on the information gathered and made
known to them. In other words, the right to information really goes
hand-in-hand with the constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance the widening role of
the citizenry in governmental decision-making as well as in checking
abuse in the government.28 The cases of Tañada v. Tuvera29 and Legaspi
v. Civil Service Commission30 have recognized a citizen's interest and
personality to enforce a public duty and to bring an action to compel
public officials and employees to perform that duty.
Section 4(b) limits or obstructs the power of Congress to secure from
PCGG members and staff information and other data in aid of its power
to legislate. Again, this must not be countenanced. In Senate v.
Ermita,31 this Court stressed:
To the extent that investigations in aid of legislation are
generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in
such investigations necessarily deprives the people of
information which, being presumed to be in aid of
legislation, is presumed to be a matter of public concern. The
citizens are thereby denied access to information which they
can use in formulating their own opinions on the matter
before Congress – opinions which they can then communicate
to their representatives and other government officials
through the various legal means allowed by their freedom of
expression.
A statute may be declared unconstitutional because it is not within the
legislative power to enact; or it creates or establishes methods or forms
that infringe constitutional principles; or its purpose or effect violates
the Constitution or its basic principles.32 As shown in the above
discussion, Section 4(b) is inconsistent withArticle VI, Section
21 (Congress' power of inquiry), Article XI, Section 1 (principle of public
accountability),Article II, Section 28 (policy of full disclosure) and Article
III, Section 7 (right to public information).
Significantly, Article XVIII, Section 3 of the Constitution provides:
All existing laws, decrees, executive orders, proclamations,
letters of instructions, and other executive issuances not
inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
The clear import of this provision is that all existing laws, executive
orders, proclamations, letters of instructions and other executive
issuances inconsistent or repugnant to the Constitution are repealed.
Jurisprudence is replete with decisions invalidating laws, decrees,
executive orders, proclamations, letters of instructions and other
executive issuances inconsistent with the Constitution. In Pelaez v.
Auditor General,33 the Court considered repealed Section 68 of the
Revised Administrative Code of 1917 authorizing the Executive to
change the seat of the government of any subdivision of local
74
governments, upon the approval of the 1935 Constitution. Section 68
was adjudged incompatible and inconsistent with the Constitutional
grant of limited executive supervision over local governments. In Islamic
Da'wah Council of the Philippines, Inc., v. Office of the Executive
Secretary,34 the Court declared Executive Order No. 46, entitled
"Authorizing the Office on Muslim Affairs to Undertake Philippine Halal
Certification," void for encroaching on the religious freedom of Muslims.
InThe Province of Batangas v. Romulo,35 the Court declared some
provisions of the General Appropriations Acts of 1999, 2000 and 2001
unconstitutional for violating the Constitutional precept on local
autonomy. And in Ople v. Torres,36 the Court likewise declared
unconstitutional Administrative Order No. 308, entitled "Adoption of a
National Computerized Identification Reference System," for being
violative of the right to privacy protected by the Constitution.
These Decisions, and many others, highlight that the Constitution is the
highest law of the land. It is "the basic and paramount law to which all
other laws must conform and to which all persons, including the
highest officials of the land, must defer. No act shall be valid, however
noble its intentions, if it conflicts with the
Constitution."37 Consequently, this Court has no recourse but to declare
Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution.
Significantly, during the oral arguments on September 21, 2006,
Chairman Sabio admitted that should this Court rule that Section 4(b) is
unconstitutional or that it does not apply to the Senate, he will answer
the questions of the Senators, thus:
CHIEF JUSTICE PANGANIBAN:
Okay. Now, if the Supreme Court rules that Sec.
4(b) is unconstitutional or that it does not apply to
the Senate, will you answer the questions of the
Senators?
CHAIRMAN SABIO:
Your Honor, my father was a judge, died being a
judge. I was here in the Supreme Court as Chief of
Staff of Justice Feria. I would definitely honor the
Supreme Court and the rule of law.
CHIEF JUSTICE PANGANIBAN:
You will answer the questions of the Senators if we
say that?
CHAIRMAN SABIO:
Yes, Your Honor. That is the law already as far as I
am concerned.
With his admission, Chairman Sabio is not fully convinced that he and his
Commissioners are shielded from testifying before respondent Senate
Committees by Section 4(b) of E.O. No. 1. In effect, his argument that
the said provision exempts him and his co-respondent Commissioners
from testifying before respondent Senate Committees concerning
Senate Res. No. 455 utterly lacks merit.
Incidentally, an argument repeated by Chairman Sabio is that
respondent Senate Committees have no power to punish him and his
Commissioners for contempt of the Senate.
The argument is misleading.
Article VI, Section 21 provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
It must be stressed that the Order of Arrest for "contempt of Senate
Committees and the Philippine Senate" wasapproved by Senate
President Villar and signed by fifteen (15) Senators. From this, it can be
concluded that the Order is under the authority, not only of the
respondent Senate Committees, but of the entire Senate.
At any rate, Article VI, Section 21 grants the power of inquiry not only to
the Senate and the House of Representatives, but also to any of their
respective committees. Clearly, there is a direct conferral of power to
the committees. Father Bernas, in his Commentary on the 1987
Constitution, correctly pointed out its significance:
It should also be noted that the Constitution explicitly
recognizes the power of investigation not just of Congress but
also of "any of its committees." This is significant because it
constitutes a direct conferral of investigatory power upon
the committees and it means that the means which the
Houses can take in order to effectively perform its
investigative function are also available to the Committees. 38
This is a reasonable conclusion. The conferral of the legislative power of
inquiry upon any committee of Congress must carry with it all powers
necessary and proper for its effective discharge. Otherwise, Article VI,
Section 21 will be meaningless. The indispensability and usefulness of
the power of contempt in a legislative inquiry is underscored in a catena
of cases, foreign and local.
In the 1821 case of Anderson v. Dunn,39 the function of the Houses of
Congress with respect to the contempt power was likened to that of a
court, thus:
…But the court in its reasoning goes beyond this, and though
the grounds of the decision are not very clearly stated, we
take them to be: that there is in some cases a power in each
House of Congress to punish for contempt; that this power is
analogous to that exercised by courts of justice, and that it
being the well established doctrine that when it appears that
a prisoner is held under the order of a court of general
jurisdiction for a contempt of its authority, no other court
will discharge the prisoner or make further inquiry into the
cause of his commitment. That this is the general rule…as
regards the relation of one court to another must be
conceded.
In McGrain,40 the U.S. Supreme Court held: "Experience has shown that
mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete;
so some means of compulsion is essential to obtain what is needed."
The Court, in Arnault v. Nazareno,41 sustained the Congress' power of
contempt on the basis of this observation.
In Arnault v. Balagtas,42 the Court further explained that the contempt
power of Congress is founded upon reason and policy and that the
power of inquiry will not be complete if for every contumacious act,
Congress has to resort to judicial interference, thus:
The principle that Congress or any of its bodies has the power
to punish recalcitrant witnesses is founded upon reason and
policy. Said power must be considered implied or incidental to
the exercise of legislative power. How could a legislative body
obtain the knowledge and information on which to base
intended legislation if it cannot require and compel the
disclosure of such knowledge and information if it is
impotent to punish a defiance of its power and authority?
When the framers of the Constitution adopted the principle
of separation of powers, making each branch supreme
within the realm of its respective authority, it must have
intended each department's authority to be full and
complete, independently of the other's authority or power.
And how could the authority and power become complete if
for every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to the
judicial department for the appropriate remedy, because it is
impotent by itself to punish or deal therewith, with the
affronts committed against its authority or dignity.43
In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang
Panlungsod of Dumaguete,44 the Court characterized contempt power as
a matter of self-preservation, thus:
The exercise by the legislature of the contempt power is
a matter of self-preservation as that branch of the
government vested with the legislative power, independently
of the judicial branch, asserts its authority and punishes
contempts thereof. The contempt power of the legislature is,
therefore, sui generis x x x.
75
Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat
Holdings Corporation and its directors and officers, this Court holds that
the respondent Senate Committees' inquiry does not violate their right
to privacy and right against self-incrimination.
One important limitation on the Congress' power of inquiry is that "the
rights of persons appearing in or affected by such inquiries shall be
respected." This is just another way of saying that the power of inquiry
must be "subject to the limitations placed by the Constitution on
government action." As held in Barenblatt v. United States,45 "the
Congress, in common with all the other branches of the Government,
must exercise its powers subject to the limitations placed by the
Constitution on governmental action, more particularly in the context
of this case, the relevant limitations of the Bill of Rights."
First is the right to privacy.
Zones of privacy are recognized and protected in our laws.46 Within
these zones, any form of intrusion is impermissible unless excused by
law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that
the right to privacy is a "constitutional right" and "theright most valued
by civilized men,"47 but also from our adherence to the Universal
Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has
the right to the protection of the law against such interference or
attacks."48
Our Bill of Rights, enshrined in Article III of the Constitution, provides at
least two guarantees that explicitly create zones of privacy. It highlights
a person's "right to be let alone" or the "right to determine what, how
much, to whom and when information about himself shall be
disclosed."49 Section 2 guarantees "the right of the people to be secure
in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose." Section 3 renders inviolable the "privacy of communication
and correspondence" and further cautions that "any evidence obtained
in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding."
In evaluating a claim for violation of the right to privacy, a court must
determine whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion. 50 Applying this determination to
these cases, the important inquiries are: first, did the directors and
officers of Philcomsat Holdings Corporation exhibit a reasonable
expectation of privacy?; andsecond, did the government violate such
expectation?
The answers are in the negative. Petitioners were invited in the Senate's
public hearing to deliberate on Senate Res. No. 455, particularly "on the
anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings
Corporations (PHC) due to the alleged improprieties in the operations
by their respective board of directors." Obviously, the inquiry focus on
petitioners' acts committed in the discharge of their duties as officers
and directors of the said corporations, particularly Philcomsat Holdings
Corporation. Consequently, they have no reasonable expectation of
privacy over matters involving their offices in a corporation where the
government has interest. Certainly, such matters are of public concern
and over which the people have the right to information.
This goes to show that the right to privacy is not absolute where there is
an overriding compelling state interest. In Morfe v. Mutuc,51 the Court,
in line with Whalen v. Roe,52 employed the rational basis relationship
test when it held that there was no infringement of the individual's right
to privacy as the requirement to disclosure information is for a valid
purpose, i.e., to curtail and minimize the opportunities for official
corruption, maintain a standard of honesty in public service, and
promote morality in public administration. 53 In Valmonte v.
Belmonte,54the Court remarked that as public figures, the Members of
the former Batasang Pambansa enjoy a more limited right to privacy as
compared to ordinary individuals, and their actions are subject to closer
scrutiny. Taking this into consideration, the Court ruled that the right of
the people to access information on matters of public concern prevails
over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the
PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the
conspiratorial participation of the PCGG and its officials are compelling
reasons for the Senate to exact vital information from the directors and
officers of Philcomsat Holdings Corporations, as well as from Chairman
Sabio and his Commissioners to aid it in crafting the necessary legislation
to prevent corruption and formulate remedial measures and policy
determination regarding PCGG's efficacy. There being no reasonable
expectation of privacy on the part of those directors and officers over
the subject covered by Senate Res. No. 455, it follows that their right to
privacy has not been violated by respondent Senate Committees.
Anent the right against self-incrimination, it must be emphasized that
this right maybe invoked by the said directors and officers of Philcomsat
Holdings Corporation only when the incriminating question is being
asked, since they have no way of knowing in advance the nature or
effect of the questions to be asked of them."55That this right
may possibly be violated or abused is no ground for denying respondent
Senate Committees their power of inquiry. The consolation is that when
this power is abused, such issue may be presented before the courts. At
this juncture, what is important is that respondent Senate Committees
have sufficient Rules to guide them when the right against self-
incrimination is invoked. Sec. 19 reads:
Sec. 19. Privilege Against Self-Incrimination
A witness can invoke his right against self-incrimination only
when a question tends to elicit an answer that will incriminate
him is propounded to him. However, he may offer to answer
any question in an executive session.
No person can refuse to testify or be placed under oath or
affirmation or answer questions before an incriminatory
question is asked. His invocation of such right does not by
itself excuse him from his duty to give testimony.
In such a case, the Committee, by a majority vote of the
members present there being a quorum, shall determine
whether the right has been properly invoked. If the
Committee decides otherwise, it shall resume its investigation
and the question or questions previously refused to be
answered shall be repeated to the witness. If the latter
continues to refuse to answer the question, the Committee
may punish him for contempt for contumacious conduct.
The same directors and officers contend that the Senate is barred from
inquiring into the same issues being litigated before the Court of Appeals
and the Sandiganbayan. Suffice it to state that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation provide that the filing
or pendency of any prosecution of criminal or administrative action
should not stop or abate any inquiry to carry out a legislative purpose.
Let it be stressed at this point that so long as the constitutional rights of
witnesses, like Chairman Sabio and his Commissioners, will be respected
by respondent Senate Committees, it their duty to cooperate with them
in their efforts to obtain the facts needed for intelligent legislative
action. The unremitting obligation of every citizen is to respond to
subpoenae, to respect the dignity of the Congress and its Committees,
and to testify fully with respect to matters within the realm of proper
investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo
Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel
Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings
Corporation, as well as its directors and officers, must comply with
the Subpoenae Ad Testificandum  issued by respondent Senate
Committees directing them to appear and testify in public hearings
relative to Senate Resolution No. 455.
WHEREFORE, the petition in G.R. No. 174340 for habeas
corpus is DISMISSED, for being moot. The petitions in G.R Nos. 174318
and 174177 are likewise DISMISSED.
76
Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987
Constitution. Respondent Senate Committees' power of inquiry relative
to Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio and
Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso
Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to
Philcomsat Holdings Corporation, as well as its directors and officers,
petitioners in G.R. No. 174177, are ordered to comply with
the Subpoenae Ad Testificandum  issued by respondent Senate
Committees directing them to appear and testify in public hearings
relative to Senate Resolution No. 455.
SO ORDERED.

77
 EN BANC  
  x--------------------------------------------------x
   
BAI SANDRA S. A. SEMA,                      G.R. No. 177597  
                              Petitioner, DECISION
                                                                        
   
  CARPIO, J.:
      - versus -                                             
           
  The Case
                                                                  
COMMISSION ON ELECTIONS                  
and DIDAGEN P. DILANGALEN,                              These consolidated petitions[1] seek to annul Resolution No. 7902,
                               Respondents.                     dated 10 May 2007, of the Commission on Elections (COMELEC) treating
x------------------------x Cotabato City as part of the legislative district of the Province of Shariff
  Kabunsuan.[2]
PERFECTO F. MARQUEZ,                 G.R. No. 178628     
                               Petitioner, The Facts
                                                                     Present:  
   
                                                                     PUNO, C.J.,                                                    The Ordinance appended to the 1987 Constitution apportioned
                      two legislative districts for the Province of Maguindanao. The first
                                                                     QUISUMBING, legislative district consists of Cotabato City and eight municipalities.
[3]
                                                                     YNARES-SANTIAGO,   Maguindanao forms part of the Autonomous Region in Muslim
                                                                  CARPIO, Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734
                                                                  AUSTRIA-MARTINEZ, (RA 6734), as amended by Republic Act No. 9054  (RA 9054).[4] Although
                                                                      CORONA, under the Ordinance, Cotabato City forms part of Maguindanao’s first
                                                                      CARPIO MORALES, legislative district, it is not part of the ARMM but of Region XII, having
              - versus -                                         AZCUNA, voted against its inclusion in the ARMM in the plebiscite held in
                                                                      TINGA, November 1989.
                                                                  CHICO-NAZARIO,  
                                                                  VELASCO, JR.,           On 28 August 2006, the ARMM’s legislature, the ARMM Regional
                                                                  NACHURA, Assembly, exercising its power to create provinces under Section 19,
                                                                      REYES, Article VI of RA 9054,[5] enacted Muslim Mindanao Autonomy Act No.
L 201 (MMA Act 201) creating the Province ofShariff
E Kabunsuan composed of the eight municipalities in the first district of
O Maguindanao.  MMA Act 201 provides:
N                
A           Section 1. The Municipalities of Barira,
R Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog,
D Parang, Sultan Kudarat, Sultan Mastura, and Upi are
O hereby separated from
- the Province of Maguindanao and constituted into
D a distinct and independent province, which is
E hereby created, to be known as
C the Province of Shariff Kabunsuan.
A  
S  
T            x x x x
R  
O Sec. 5.  The corporate existence of this
, province shall commence upon the appointment by
a the Regional Governor or election of the governor
n and majority of the regular members of the
d Sangguniang Panlalawigan.
B  
RI             The incumbent elective provincial officials of
O the Province of Maguindanao shall continue to
N serve their unexpired terms in the province that
,  they will choose or where they are
JJ residents:  Provided, that where an elective
.   position in both provinces becomes vacant as a
  consequence of the creation of the Province of
  Shariff Kabunsuan, all incumbent elective provincial
COMMISSION ON ELECTIONS,          Promulgated: officials shall have preference for appointment to a
                                Respondent.               July 16, 2008 higher elective vacant position and for the time
78
 being be appointed by the Regional Governor, and
shall hold office until their successors shall have
been elected and qualified in the next local
elections; Provided, further, that they shall
continue to receive the salaries they are receiving
at the time of the approval of this Act until the new
readjustment of salaries in accordance with
law.  Provided, furthermore, that there shall be no
diminution in the number of the members of the
Sangguniang Panlalawigan of the mother province.
 
            Except as may be provided by national law,
the existing legislative district, which includes
Cotabato as a part thereof, shall remain.  (2) Sema’s prayer for the writ of prohibition in G.R. No. 177597 became
 
 
Later, three new municipalities [6] were carved out of the original nine
municipalities constituting Shariff Kabunsuan, bringing its total number
of municipalities to 11. Thus, what was left of Maguindanao were the
municipalities constituting its second legislative district.Cotabato City,
although part of Maguindanao’s first legislative district, is not part of
the Province of Maguindanao.
 
The voters of Maguindanao ratified Shariff Kabunsuan’s
creation in a plebiscite held on 29 October 2006.
         
On 6 February 2007, the Sangguniang Panlungsod of Cotabato
City passed Resolution No. 3999 requesting the COMELEC to “clarify the
status of Cotabato City in view of the conversion of the First District of
Maguindanao into a regular province” under MMA Act 201.
 
          In answer to Cotabato City’s query, the COMELEC issued
Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo
with Cotabato City as part of Shariff Kabunsuan in the First Legislative
District of Maguindanao.” Resolution No. 07-0407, which adopted the
recommendation of the COMELEC’s Law Department under a
Memorandum dated 27 February 2007,[7]provides in pertinent parts:
            Considering the foregoing, the Commission
RESOLVED, as it hereby resolves, to adopt the
recommendation of the Law Department
thatpending the enactment of the appropriate law
by Congress, to maintain the status quo
with Cotabato City as part of Shariff Kabunsuan in
the First Legislative District of
Maguindanao.  (Emphasis supplied)
 
 
However, in preparation for the 14 May 2007 elections, the
COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating
that Maguindanao’s first legislative district is composed only
of Cotabato City because of the enactment of MMA Act 201.[8]  the Constitution, without a reapportionment”; (b) Section 462 of
 
          On 10 May 2007, the COMELEC issued Resolution No. 7902,
subject of these petitions, amending Resolution No. 07-0407 by
renaming the legislative district in question as
“Shariff Kabunsuan Province with Cotabato City (formerly First District of
Maguindanao with Cotabato City).”[9]
 
          In G.R. No. 177597, Sema, who was a candidate in the 14 May
2007 elections for Representative of “Shariff Kabunsuan
withCotabato City,” prayed for the nullification of COMELEC Resolution
No. 7902 and the exclusion from canvassing of the votes cast
in Cotabato City for that office. Sema contended that Shariff Kabunsuan
is entitled to one representative in Congress under Section 5 (3), Article
VI of the Constitution[10] and Section 3 of the Ordinance appended to the
Constitution.[11] Thus, Sema asserted that the COMELEC acted without or
in excess of its jurisdiction in issuing Resolution No. 7902 which
maintained the status quo in Maguindanao’s first legislative district
despite the COMELEC’s earlier directive in Resolution No. 7845
designating Cotabato City as the lone component of Maguindanao’s
reapportioned first legislative district. [12] Sema further claimed that in
issuing Resolution No. 7902, the COMELEC usurped Congress’ power to
create or reapportion legislative districts.
 
          In its Comment, the COMELEC, through the Office of the Solicitor
General (OSG), chose not to reach the merits of the case and merely
contended that (1) Sema wrongly availed of the writ of certiorari to
nullify COMELEC Resolution No. 7902 because the COMELEC issued the
same in the exercise of its administrative, not quasi-judicial, power and
moot with the proclamation of respondent Didagen P. Dilangalen
(respondent Dilangalen) on 1 June 2007 as representative of the
legislative district of Shariff Kabunsuan Province with Cotabato City.
 
          In his Comment, respondent Dilangalen countered that Sema is
estopped from questioning COMELEC Resolution No. 7902 because in
her certificate of candidacy filed on 29 March 2007, Sema indicated that
she was seeking election as representative of “Shariff Kabunsuan
including Cotabato City.”  Respondent Dilangalen added that COMELEC
Resolution No. 7902 is constitutional because it did not apportion a
legislative district for Shariff Kabunsuan or reapportion the legislative
districts in Maguindanao but merely renamed Maguindanao’s first
legislative district. Respondent Dilangalen further claimed that the
COMELEC could not reapportion Maguindanao’s first legislative district
to make Cotabato City its sole component unit as the power to
reapportion legislative districts lies exclusively with Congress, not to
mention that Cotabato City does not meet the minimum population
requirement under Section 5 (3), Article VI of the Constitution for the
creation of a legislative district within a city. [13] 
 
          Sema filed a Consolidated Reply controverting the matters raised
in respondents’ Comments and reiterating her claim that the COMELEC
acted ultra vires in issuing Resolution No. 7902.
In the Resolution of 4 September 2007, the Court required the
parties in G.R. No. 177597 to comment on the issue of whether a
province created by the ARMM Regional Assembly under Section 19,
Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative
district for such new province. The parties submitted their compliance as
follows:
 
(1) Sema answered the issue in the affirmative on the
following grounds: (a) the Court in Felwa v. Salas[14] stated that “when a
province is created by statute, the corresponding representative district
comes into existence neither by authority of that statute — which
cannot provide otherwise — nor by apportionment, but by operation of
Republic Act No. 7160 (RA 7160) “affirms” the apportionment of a
legislative district incident to the creation of a province; and (c)  Section
5 (3), Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution mandate the  apportionment of a
legislative district in newly created provinces.
 
(2) The COMELEC, again represented by the OSG, apparently
abandoned its earlier stance on the propriety of issuing Resolution Nos.
07-0407 and 7902 and joined causes with Sema, contending that Section
5 (3), Article VI of the Constitution is “self-executing.” Thus, every new
province created by the ARMM Regional Assembly is ipso facto entitled
to one representative in the House of Representatives even in the
absence of a national law; and
 
79
 (3) Respondent Dilangalen answered the issue in the negative
on the following grounds: (a) the “province” contemplated in Section 5
(3), Article VI of the Constitution is one that is created by an act of
Congress taking into account the provisions in RA 7160 on the creation
of provinces; (b) Section 3, Article IV of RA 9054 withheld from the
ARMM Regional Assembly the power to enact measures relating to
national elections, which encompasses the apportionment of legislative
districts for members of the House of Representatives; (c) recognizing a
legislative district in every province the ARMM Regional Assembly
creates will lead to the disproportionate representation of the ARMM in
the House of Representatives as the  Regional Assembly can create
provinces without regard to the requirements in Section 461 of RA 7160;
and (d) Cotabato City, which has a population of less than 250,000, is not
entitled to a representative in the House of Representatives.
 
On 27 November 2007, the Court heard the parties in
G.R.              No. 177597 in oral arguments on the following issues: (1)
whether Section 19, Article VI of RA 9054, delegating to the ARMM
Regional Assembly the power to create provinces, is constitutional; and
(2) if in the affirmative, whether a province created under Section 19,
Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative
district for such new province.[15]
 
In compliance with the Resolution dated 27 November 2007,
the parties in G.R. No. 177597 filed their respective Memoranda on the
issues raised in the oral arguments. [16] On the question of the
constitutionality of Section 19, Article VI of RA 9054, the parties in G.R.
No. 177597 adopted the following positions:
 
(1) Sema contended that Section 19, Article VI of RA 9054 is
constitutional (a) as a valid delegation by Congress to the ARMM of the
power to create provinces under Section 20 (9), Article X of the
Constitution granting to the autonomous regions, through their organic
acts, legislative powers over “other matters as may be authorized by law
for the promotion of the general welfare of the people of the region”
and (b) as an amendment to Section 6 of RA 7160. [17] However, Sema
concedes that, if taken literally, the grant in Section 19,  Article VI of RA
9054 to the ARMM Regional Assembly of the power to “prescribe
standards lower than those mandated” in RA 7160 in the creation of
provinces contravenes Section 10, Article X of the Constitution. [18] Thus,
Sema proposed that Section 19 “should be construed as prohibiting the
Regional Assembly from prescribing standards x x x that do not comply
with the minimum criteria” under RA 7160.[19]
 
(2) Respondent Dilangalen contended that  Section 19,  Article
VI of RA 9054 is unconstitutional on the following grounds: (a) the power
to create provinces was not among those granted to the autonomous
regions under Section 20, Article X of the Constitution and (b) the grant
under Section 19, Article VI of RA 9054  to the ARMM Regional Assembly
of the power to prescribe standards lower than those mandated in
Section 461 of RA 7160 on the creation of provinces contravenes Section
10, Article X of the Constitution and the Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with
respondent Dilangalen (thus effectively abandoning the position the
COMELEC adopted in its Compliance with the Resolution of 4 September
2007) and contended that Section 19, Article VI of RA 9054 is
unconstitutional because (a) it contravenes Section 10 and Section 6,
[20]
 Article X of the Constitution and (b) the power to create provinces
was withheld from the autonomous regions under Section 20, Article X
of the Constitution.
On the question of whether a province created under Section
19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative
district for such new province, Sema and respondent Dilangalen
reiterated in their Memoranda the positions they adopted in their
Compliance with the Resolution of 4 September 2007. The
COMELEC deemed it unnecessary to submit its position on this issue
considering its stance that Section 19, Article VI of RA 9054 is
unconstitutional.
 
The pendency of the petition in G.R. No. 178628 was
disclosed during the oral arguments on 27 November 2007. Thus, in the
Resolution of 19 February 2008, the Court ordered G.R. No. 178628
consolidated with G.R. No. 177597.  The petition in G.R. No.178628
echoed Sema's contention that the COMELEC acted ultra vires in issuing
Resolution      No. 7902 depriving the voters ofCotabato City of a
representative in the House of Representatives.  In its Comment to the
petition in G.R.             No. 178628, the COMELEC, through the OSG,
maintained the validity of COMELEC Resolution No. 7902 as a temporary
measure pending the enactment by Congress of  the “appropriate law.”
 
 
The Issues
 
         
The petitions raise the following issues:
 
          I. In G.R. No. 177597:
          (A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and
Mandamus are proper to test the constitutionality of COMELEC
Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as
representative of Shariff Kabunsuan Province with Cotabato Citymooted
the petition in G.R. No. 177597.
 
 
 
 
 
(B) On the merits –
(1)  whether Section 19, Article VI of RA 9054, delegating to
the ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the
ARMM Regional Assembly under MMA Act 201 pursuant to Section 19,
Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative
district for such province.
 
II. In G.R No.  177597 and G.R No.  178628, whether
COMELEC Resolution No. 7902 is valid for maintaining the status quo in
the first legislative district of Maguindanao (as “Shariff Kabunsuan
Province with Cotabato City [formerly First District of Maguindanao with
Cotabato City]”), despite the creation of the Province of Shariff
Kabunsuan out of such district (excluding Cotabato City).
 
The Ruling of the Court
 
          The petitions have no merit.  We rule that (1) Section 19, Article VI
of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities; (2) MMA Act 201
creating the Province of Shariff Kabunsuanis void; and (3) COMELEC
Resolution No. 7902 is valid.
 
 
 
 
 
80
 
 
On the Preliminary Matters
 
 
The Writ of Prohibition is Appropriate
to Test the Constitutionality of
Election Laws, Rules and Regulations
 
         
The purpose of the writ of Certiorari is to correct grave abuse
of discretion by “any tribunal, board, or officer exercising judicial or
quasi-judicial functions.”[21] On the other hand, the writ of Mandamus
will issue to compel a tribunal, corporation, board, officer, or person to
perform an act “which the law specifically enjoins as a duty.” [22] True, the
COMELEC did not issue Resolution No. 7902 in the exercise of its judicial
or quasi-judicial functions.[23] Nor is there a law which specifically enjoins
the COMELEC to exclude from canvassing the votes cast
in Cotabato City for representative of
“Shariff Kabunsuan Province with Cotabato City.” These, however, do
not justify the outright dismissal of the petition in G.R. No. 177597
because Sema also prayed for the issuance of the writ of Prohibition and
we have long recognized this writ as proper for testing the
constitutionality of election laws, rules, and regulations. [24]
 
 
Respondent Dilangalen’s Proclamation
Does Not Moot the Petition
 
 
          There is also no merit in the claim that respondent Dilangalen’s
proclamation as winner in the 14 May 2007 elections for representative
of “Shariff Kabunsuan Province with Cotabato City” mooted this petition.
This case does not concern respondent Dilangalen’s election. Rather, it
involves an inquiry into the validity of COMELEC Resolution No. 7902, as
well as the constitutionality of MMA Act 201 and Section 19, Article VI of
RA 9054.  Admittedly, the outcome of this petition, one way or another,
determines whether the votes cast in Cotabato City for representative of
the district of “Shariff Kabunsuan Province withCotabato City” will be
included in the canvassing of ballots.   However, this incidental
consequence is no reason for us not to proceed with the resolution of
the novel issues raised here.  The Court’s ruling in these petitions affects
not only the recently concluded elections but also all the other
succeeding elections for the office in question, as well as the power of
the ARMM Regional Assembly to create in the future additional
provinces.
 
 
On the Main Issues
 
 
Whether the ARMM Regional Assembly
Can Create the  Province  of  Shariff Kabunsuan  a population of less than 250,000 involves the power to create a
 
 
          The creation of local government units is governed by Section 10,
Article X of the Constitution, which provides:
 
Sec. 10. No province, city, municipality,
or barangay may be created, divided, merged,
abolished or its boundary substantially altered
except in accordance with the criteria established in
the local government code and subject to approval
by a majority of the votes cast in a plebiscite in the
political units directly affected.
 
Thus, the creation of any of the four local government units – province,
city, municipality or barangay – must comply with three conditions. First,
the creation of a local government unit must follow the criteria fixed in
the Local Government Code.   Second, such creation must not conflict
with any provision of the Constitution.  Third, there must be a plebiscite
in the political units affected.
 
          There is neither an express prohibition nor an express grant of
authority in the Constitution for Congress to delegate to regional or local
legislative bodies the power to create local government units. However,
under its plenary legislative powers, Congress can delegate to local
legislative bodies the power to create local government units, subject to
reasonable standards and provided no conflict arises with any provision
of the Constitution.  In fact, Congress has delegated to provincial boards,
and city and municipal councils, the power to create barangays within
their jurisdiction,[25] subject to compliance with the criteria established in
the Local Government Code, and the plebiscite requirement in Section
10, Article X of the Constitution.   However, under the Local Government
Code, “only x x x an Act of Congress” can create provinces, cities or
municipalities.[26]
 
          Under Section 19, Article VI of RA 9054, Congress delegated to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM.   Congress made the
delegation under its plenary legislative powers because the power to
create local government units is not one of the express legislative
powers granted by the Constitution to regional legislative bodies. [27] In
the present case, the question arises whether the delegation to the
ARMM Regional Assembly of the power to create provinces, cities,
municipalities and barangays conflicts with any provision of the
Constitution. 
 
          There is no provision in the Constitution that conflicts with the
delegation to regional legislative bodies of the power to create
municipalities and barangays, provided Section 10, Article X of the
Constitution is followed.  However, the creation of provinces and cities is
another matter.  Section 5 (3), Article VI of the Constitution provides,
“Each city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative” in the House of
Representatives. Similarly, Section 3 of the Ordinance appended to the
Constitution provides, “Any province that may hereafter be created, or
any city whose population may hereafter increase to more than two
hundred fifty thousand shall be entitled in the immediately following
election to at least one Member x x x.” 
 
Clearly, a province cannot be created without a legislative
district because it will violate Section 5 (3), Article VI of the Constitution
as well as Section 3 of the Ordinance appended to the Constitution. For
the same reason, a city with a population of 250,000 or more cannot
also be created without a legislative district. Thus, the power to create a
province, or a city with a population of 250,000 or more, requires also
the power to create a legislative district. Even the creation of a city with
legislative district because once the city’s population reaches 250,000,
the city automatically becomes entitled to one representative under
Section 5 (3), Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. Thus, the power to create a
province or city inherently involves the power to create a legislative
district. 
 
For Congress to delegate validly the power to create a
province or city, it must also validly delegate at the same time the power
to create a legislative district.  The threshold issue then is, can Congress
validly delegate to the ARMM Regional Assembly the power to create
legislative districts for the House of Representatives?  The answer is in
the negative.
81
Legislative Districts are Created or Reapportioned
Only by an Act of Congress
 
Under the present Constitution, as well as in
past[28] Constitutions, the power to increase the allowable membership
in the House of Representatives, and to reapportion legislative districts,
is vested exclusively in Congress.  Section 5, Article VI of the Constitution
provides:
 
SECTION 5. (1) The House of
Representatives shall be composed of not more
than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from
legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area
in accordance with the number of their respective
inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.
 
             x x x x
 
(3) Each legislative district shall comprise,
as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at
least two hundred fifty thousand, or each province,
shall have at least one representative.
 
(4) Within three years following the
return of every census, the Congress shall make a
reapportionment of legislative districts based on
the standards provided in this section. (Emphasis
supplied)
 
 
 
Section 5 (1), Article VI of the Constitution vests in Congress
the power to increase, through a law, the allowable membership in the
House of Representatives.  Section 5 (4) empowers Congress to
reapportion legislative districts.  The power to reapportion legislative
districts necessarily includes the power to create legislative districts out
of existing ones. Congress exercises these powers through a law that
Congress itself enacts, and not through a law that regional or local
legislative bodies enact.  The allowable membership of the House of
Representatives can be increased, and new legislative districts of
Congress can be created, only through a national law passed by
Congress.  In Montejo v. COMELEC,[29] we held that the “power of
redistricting x x x is traditionally regarded as part of the power (of
Congress) to make laws,” and thus is vested exclusively in Congress.
 
This textual commitment to Congress of the exclusive power
to create or reapportion legislative districts is logical. Congress is a
national legislature and any increase in its allowable membership or in
its incumbent membership through the creation of legislative districts
must be embodied in a national law. Only Congress can enact such a
law.  It would be anomalous for regional or local legislative bodies to
create or reapportion legislative districts for a national legislature like
Congress. An inferior legislative body, created by a superior legislative
body, cannot change the membership of the superior legislative body.  law, the existing legislative district, which includes
 
The creation of the ARMM, and the grant of legislative powers
to its Regional Assembly under its organic act, did not divest Congress of
its exclusive authority to create legislative districts. This is clear from the
Constitution and the ARMM Organic Act, as amended. Thus, Section 20,
Article X of the Constitution provides:
 
SECTION 20. Within its territorial
jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of
autonomous regions shall provide for legislative
powers over:
(1)        Administrative organization;
(2)        Creation of sources of revenues;
(3)        Ancestral domain and natural
resources;
(4)        Personal, family, and property
relations;
(5)        Regional urban and rural planning
development;
(6)        Economic, social, and tourism
development;
(7)        Educational policies;
(8)        Preservation and development of
the cultural heritage; and
(9)        Such other matters as may be
authorized by law for the promotion of the general
welfare of the people of the region.
 
Nothing in Section 20, Article X of the Constitution authorizes
autonomous regions, expressly or impliedly, to create or reapportion
legislative districts for Congress.  
 
On the other hand, Section 3, Article IV of RA 9054 amending
the ARMM Organic Act, provides, “The Regional Assembly may exercise
legislative power x x x  except on the following matters: x x
x (k) National elections. x x x.”  Since the ARMM Regional Assembly has
no legislative power to enact laws relating to national elections, it
cannot create a legislative district whose representative is elected in
national elections. Whenever Congress enacts a law creating a legislative
district, the first representative is always elected in the “next national
elections” from the effectivity of the law.[30] 
Indeed, the office of a legislative district representative to
Congress is a national office, and its occupant, a Member of the House
of Representatives, is a national official.[31]  It would be incongruous for
a regional legislative body like the ARMM Regional Assembly to create a
national office when its legislative powers extend only to its regional
territory.  The office of a district representative is maintained by national
funds and the salary of its occupant is paid out of national funds.  It is a
self-evident inherent limitation on the legislative powers of every local
or regional legislative body that it can only create local or regional
offices, respectively, and it can never create a national office. 
 
To allow the ARMM Regional Assembly to create a national
office is to allow its legislative powers to operate outside the ARMM’s
territorial jurisdiction.   This violates Section 20, Article X of the
Constitution which expressly limits the coverage of the Regional
Assembly’s legislative powers “[w]ithin its territorial jurisdiction x x x.” 
 
The ARMM Regional Assembly itself, in creating Shariff
Kabunsuan, recognized the exclusive nature of Congress’ power to
create or reapportion legislative districts by abstaining from creating a
legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201
provides that:
 
Except as may be provided by national
Cotabato City as a part thereof, shall
remain. (Emphasis supplied)
 
However, a province cannot legally be created without a legislative
district because the Constitution mandates that “each province shall
82
have at least one representative.”   Thus, the creation of the Province of
Shariff Kabunsuan without a legislative district is unconstitutional.  years after the return of every
 
          Sema, petitioner in G.R. No. 177597, contends that Section 5 (3),
Article VI of the Constitution, which provides:
 
Each legislative district shall comprise, as
far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at
least two hundred fifty thousand, or each
province, shall have at least one representative.
(Emphasis supplied)
 
and Section 3 of the Ordinance appended to the Constitution, which
states:
 
Any province that may hereafter be
created, or any city whose population may
hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately
following election to at least one Member or such
number of Members as it may be entitled to on
the basis of the number of its inhabitants and
according to the standards set forth in paragraph
(3), Section 5 of Article VI of the Constitution.  The
number of Members apportioned to the province
out of which such new province was created or
where the city, whose population has so increased,
is geographically located shall be correspondingly
adjusted by the Commission on Elections but such
adjustment shall not be made within one hundred
and twenty days before the election. (Emphasis
supplied)
 
serve as bases for the conclusion that the Province of Shariff Kabunsuan,
created on 29 October 2006, is automatically entitled to one member in
the House of Representatives in the 14 May 2007 elections. As further
support for her stance, petitioner invokes the statement in Felwa  that
“when a province is created by statute, the corresponding
representative district comes into existence neither by authority of that
statute — which cannot provide otherwise — nor by apportionment, but
by operation of the Constitution, without a reapportionment.”  time when, territory of, or other conditions under
 
          The contention has no merit.
 
          First. The issue in Felwa,  among others, was whether Republic Act
No. 4695 (RA 4695), creating the provinces of Benguet, Mountain
Province, Ifugao, and Kalinga-Apayao and providing for congressional
representation in the old and new provinces, was unconstitutional for
“creati[ng] congressional districts without the apportionment provided
in the Constitution.” The Court answered in the negative, thus:
 
The Constitution ordains:
            “The House of
Representatives shall be
composed of not more than
one hundred and twenty
Members who shall be
apportioned among the
several provinces as nearly as
may be according to the
number of their respective
inhabitants, but each province
shall have at least one
Member. The Congress shall
by law make an
apportionment within three
enumeration, and not
otherwise. Until such
apportionment shall have
been made, the House of
Representatives shall have the
same number of Members as
that fixed by law for the
National Assembly, who shall
be elected by the qualified
electors from the present
Assembly districts. Each
representative district shall
comprise as far as practicable,
contiguous and compact
territory.”
            Pursuant to this Section, a representative
district may come into existence: (a) indirectly,
through the creation of a province — for “each
province shall have at least one member” in the
House of Representatives; or (b) by direct creation
of several representative districts within a
province. The requirements concerning the
apportionment of representative districts and the
territory thereof refer only to the second method of
creation of representative districts, and do not
apply to those incidental to the creation of
provinces, under the first method. This is deducible,
not only from the general tenor of the provision
above quoted, but, also, from the fact that the
apportionment therein alluded to refers to that
which is made by an Act of Congress. Indeed, when
a province is created by statute, the corresponding
representative district, comes into existence
neither by authority of that statute — which
cannot provide otherwise — nor by
apportionment, but by operation of the
Constitution, without a reapportionment.
           
            There is no constitutional limitation as to the
which a province may be created, except, perhaps,
if the consequence thereof were to exceed the
maximum of 120 representative districts prescribed
in the Constitution, which is not the effect of the
legislation under consideration. As a matter of fact,
provinces have been created or subdivided into
other provinces, with the consequent creation of
additional representative districts, without
complying with the aforementioned requirements.
[32]
  (Emphasis supplied)
 
          Thus, the Court sustained the constitutionality of RA 4695
because  (1) it validly created legislative districts “indirectly”through a
special law enacted by Congress creating a province and (2) the
creation of the legislative districts will not result in breaching the
maximum number of legislative districts provided under the 1935
Constitution.   Felwa  does not apply to the present case because
in Felwa the new provinces were created by a national law enacted by
Congress itself.  Here, the new province was created merely by
a regional law enacted by the ARMM Regional Assembly. 
 
What Felwa  teaches is that the creation of a legislative district
by Congress does not emanate alone from Congress’ power to
reapportion legislative districts, but also from Congress’ power to create
83
provinces which cannot be created without a legislative district.  Thus,
when a province is created, a legislative district is created by operation
of the Constitution because the Constitution provides that “each
province shall have at least one representative” in the House of
Representatives. This does not detract from the constitutional principle
that the power to create legislative districts belongs exclusively to
Congress.  It merely prevents any other legislative body, except
Congress, from creating provinces because for a legislative body to
create a province such legislative body must have the power to create
legislative districts.  In short, only an act of Congress can trigger the
creation of a legislative district by operation of the Constitution. Thus,
only Congress has the power to create, or trigger the creation of, a
legislative district.  are saying? That can be done, under your
 
Moreover, if as Sema claims MMA Act 201 apportioned a
legislative district to Shariff Kabunsuan upon its creation, this will leave
Cotabato City as the lone component of the first legislative district of
Maguindanao.  However, Cotabato City cannot constitute a legislative
district by itself because as of the census taken in 2000, it had a
population of only 163,849.  To constitute Cotabato City alone as the
surviving first legislative district of Maguindanao will violate Section 5
(3), Article VI of the Constitution which requires that “[E]ach city with a
population of at least two hundred fifty thousand x x x, shall have at
least one representative.”  there may be x x x [only] one hundred
 
Second. Sema’s theory also undermines the composition and
independence of the House of Representatives. Under Section 19,
[33]
 Article VI of RA 9054, the ARMM Regional Assembly can create
provinces and cities within the ARMM with or withoutregard to the
criteria fixed in Section 461 of RA 7160, namely:  minimum annual
income of P20,000,000, and minimum contiguous territory of 2,000
square kilometers or minimum population of 250,000. [34]  The following
scenarios thus become distinct possibilities:
 
(1) An inferior legislative body like the
ARMM Regional Assembly can create 100 or more
provinces and thus increase the membership of a
superior legislative body, the House
of      Representatives, beyond the maximum limit
of 250 fixed in the Constitution (unless a national
law provides otherwise);
 
(2) The proportional representation in
the House of   Representatives based on one
representative for at least every 250,000 residents
will be negated because the ARMM Regional
Assembly need not comply with the requirement in
Section 461(a)(ii) of RA 7160 that every province
created must have a population of at least 250,000;
and
 
(3) Representatives from the ARMM
provinces can become the majority in the House of
Representatives through the ARMM Regional
Assembly’s continuous creation of provinces or
cities within the ARMM.
 
The following exchange during the oral arguments of the
petition in G.R. No. 177597 highlights the absurdity of Sema’s position
that the ARMM Regional Assembly can create provinces:
 
 
Justice Carpio:
So, you mean to say [a] Local
Government can create legislative
district[s] and pack Congress with their
own representatives [?]
 
Atty. Vistan II:[35]  
          Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
So, [the] Regional Assembly of [the]
ARMM can create and create x x x
provinces  x x x  and, therefore, they can
have thirty-five (35) new representatives
in the House of Representatives without
Congress agreeing to it, is that what you
theory[?]
 
            Atty. Vistan II:
 
Yes, Your Honor, under the correct
factual circumstances.
 
Justice Carpio:
Under your theory, the ARMM legislature
can create thirty-five (35) new provinces,
thousand (100,000) [population], x x x,
and they will each have one
representative x x x to Congress without
any national law, is that what you are
saying?
 
            Atty. Vistan II:
 
Without law passed by Congress, yes,
Your Honor, that is what we are saying.
 
            x x x x     
Justice Carpio:
So, they can also create one thousand
(1000) new provinces, sen[d] one
thousand (1000) representatives to the
House of Representatives without a
national law[,] that is legally possible,
correct?
 
            Atty. Vistan II:
 
                        Yes, Your Honor.[36]    (Emphasis supplied)
 
 
Neither the framers of the 1987 Constitution in adopting the
provisions in Article X on regional autonomy, [37] nor Congress in enacting
RA 9054, envisioned or intended these disastrous consequences that
certainly would wreck the tri-branch system of government under our
Constitution.  Clearly, the power to create or reapportion legislative
districts cannot be delegated by Congress but must be exercised by
Congress itself.  Even the ARMM Regional Assembly recognizes this.
          The Constitution empowered Congress to create or reapportion
legislative districts, not the regional assemblies.  Section 3 of the
Ordinance to the Constitution which states, “[A]ny province that may
hereafter be created x x x shall be entitled in the immediately following
election to at least one Member,” refers to a province created by
Congress itself through a national law. The reason is that the creation of
a province increases the actual membership of the House of
Representatives, an increase that only Congress can
decide.  Incidentally, in the present 14th Congress, there are
219[38] district representatives out of the maximum 250 seats in the
84
House of Representatives.  Since party-list members shall constitute 20  
percent of total membership of the House, there should at least be 50  
party-list seats available in every election in case 50 party-list candidates Let a copy of this ruling be served on the President of the
are proclaimed winners. This leaves only 200 seats for district Senate and the Speaker of the House of Representatives. 
representatives, much less than the 219 incumbent district  
representatives.   Thus, there is a need now for Congress to increase by SO ORDERED.
law the allowable membership of the House, even before Congress can
create new provinces.
 
         
         
          It is axiomatic that organic acts of autonomous regions cannot
prevail over the Constitution.  Section 20, Article X of the Constitution
expressly provides that the legislative powers of regional assemblies are
limited “[w]ithin its territorial jurisdiction and subject to the provisions
of the Constitution and national laws, x x x.”  The Preamble of the
ARMM Organic Act (RA 9054) itself states that the ARMM Government is
established “within the framework of the Constitution.”   This follows
Section 15, Article X of the Constitution which mandates that the ARMM
“shall be created x x x within the framework of this Constitutionand
the national sovereignty as well as territorial integrity of the Republic
of the Philippines.”  
 
The present case involves the creation of a local government
unit that necessarily involves also the creation of a legislative
district.  The Court will not pass upon the constitutionality of the
creation of municipalities and barangays that does not comply with the
criteria established in Section 461 of RA 7160, as mandated in Section
10, Article X of the Constitution, because the creation of such
municipalities and barangays does not involve the creation of legislative
districts.  We leave the resolution of this issue to an appropriate case.
 
          In summary, we rule that Section 19, Article VI of RA 9054, insofar
as it grants to the ARMM Regional Assembly the power to create
provinces and cities, is void for being contrary to Section 5 of Article VI
and Section 20 of Article X of the Constitution, as well as Section 3 of the
Ordinance appended to the Constitution.   Only Congress can create
provinces and cities because the creation of provinces and cities
necessarily includes the creation of legislative districts, a power only
Congress can exercise under Section 5, Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution.  The ARMM
Regional Assembly cannot create a province without a legislative district
because the Constitution mandates that every province shall have a
legislative district.  Moreover, the ARMM Regional Assembly cannot
enact a law creating a national office like the office of a district
representative of Congress because the legislative powers of the ARMM
Regional Assembly operate only within its territorial jurisdiction as
provided in Section 20, Article X of the Constitution.  Thus, we rule that
MMA Act 201, enacted by the ARMM Regional Assembly and creating
the Province of Shariff Kabunsuan, is void.  
 
Resolution No. 7902 Complies with the Constitution
 
Consequently, we hold that COMELEC Resolution No. 7902,
preserving the geographic and legislative district of the First District of
Maguindanao with Cotabato City, is valid as it merely complies with
Section 5 of Article VI and Section 20 of Article X of the Constitution, as
well as Section 1 of the Ordinance appended to the Constitution.
 
          WHEREFORE, we declare Section 19, Article VI of Republic Act No.
9054 UNCONSTITUTIONAL insofar as it grants to the Regional Assembly
of the Autonomous Region in Muslim Mindanao the power to create
provinces and cities.   Thus, we declare VOID Muslim Mindanao
Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902
is VALID.
 
85
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 169777*             April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in
his capacity as Senate President, JUAN M. FLAVIER, in his capacity as
Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his
capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his
capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
“COMPANERA” PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA
“LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON,
PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO
OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-
ego of President Gloria Macapagal-Arroyo, and anyone acting in his
stead and in behalf of the President of the Philippines, Respondents.
x————————-x
G.R. No. 169659             April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA
MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE
represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE
OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS
BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego
of President Gloria Macapagal-Arroyo, Respondent.
x————————-x
G.R. No. 169660             April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J.
CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S.
SENGA, in his capacity as AFP Chief of Staff, Respondents.
x————————-x
G.R. No. 169667             April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary,Respondent.
x————————-x
G.R. No. 169834             April 20, 2006
PDP- LABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x————————-x
G.R. No. 171246             April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA
III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican
state. Even in the early history of republican thought, however, it has
been recognized that the head of government may keep certain
information confidential in pursuit of the public interest. Explaining the
reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention said:
“Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the
proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished.”1
History has been witness, however, to the fact that the power to
withhold information lends itself to abuse, hence, the necessity to guard
it zealously.
The present consolidated petitions for certiorari and prohibition proffer
that the President has abused such power by issuing Executive Order No.
464 (E.O. 464) last September 28, 2005. They thus pray for its
declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the
recognition that the issuance under review has come from a co-equal
branch of government, which thus entitles it to a strong presumption of
constitutionality. Once the challenged order is found to be indeed
violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the
Filipino people, must prevail over any issuance of the government that
contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines,
through its various Senate Committees, conducts inquiries or
investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the Philippines (AFP),
and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole
issued invitations to various officials of the Executive Department for
them to appear on September 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon Railways Corporation
with the China National Machinery and Equipment Group (hereinafter
North Rail Project). The public hearing was sparked by a privilege speech
of Senator Juan Ponce Enrile urging the Senate to investigate the alleged
overpricing and other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the
AFP: the Commanding General of the Philippine Army, Lt. Gen.
Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral
Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear
Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig.
Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine
Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for
them to attend as resource persons in a public hearing scheduled on
September 28, 2005 on the following: (1) Privilege Speech of Senator
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled “Bunye has
Provided Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May 2005″; (2)
Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005
entitled “The Philippines as the Wire-Tapping Capital of the World”; (3)
Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005
entitled “Clear and Present Danger”; (4) Senate Resolution No. 285 filed
by Senator Maria Ana Consuelo Madrigal—Resolution Directing the
Committee on National Defense and Security to Conduct an Inquiry, in
Aid of Legislation, and in the National Interest, on the Role of the
Military in the So-called “Gloriagate Scandal”; and (5) Senate Resolution
No. 295 filed by Senator Biazon—Resolution Directing the Committee on
National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005
was the AFP Chief of Staff, General Generoso S. Senga who, by
letter3 dated September 27, 2005, requested for its postponement “due
to a pressing operational situation that demands [his utmost personal
attention" while "some of the invited AFP officers are currently
attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received
from Executive Secretary Eduardo R. Ermita a letter 4 dated September
27, 2005 "respectfully request[ing] for the postponement of the hearing
86
[regarding the NorthRail project] to which various officials of the
Executive Department have been invited” in order to “afford said
officials ample time and opportunity to study and prepare for the
various issues so that they may better enlighten the Senate Committee
on its investigation.”
Senate President Drilon, however, wrote 5 Executive Secretary Ermita
that the Senators “are unable to accede to [his request]” as it “was sent
belatedly” and “[a]ll preparations and arrangements as well as notices to
all resource persons were completed [the previous] week.”
Senate President Drilon likewise received on September 28, 2005 a
letter6from the President of the North Luzon Railways Corporation Jose
L. Cortes, Jr. requesting that the hearing on the NorthRail project be
postponed or cancelled until a copy of the report of the UP Law Center
on the contract agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, “Ensuring
Observance of the Principle of Separation of Powers, Adherence to the
Rule on Executive Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes,” 7 which, pursuant to Section 6
thereof, took effect immediately. The salient provisions of the Order are
as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In
accordance with Article VI, Section 22 of the Constitution and to
implement the Constitutional provisions on the separation of powers
between co-equal branches of the government, all heads of
departments of the Executive Branch of the government shall secure the
consent of the President prior to appearing before either House of
Congress.
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. – The rule of confidentiality based on executive
privilege is fundamental to the operation of government and rooted in
the separation of powers under the Constitution (Almonte vs. Vasquez,
G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the
Code of Conduct and Ethical Standards for Public Officials and
Employees provides that Public Officials and Employees shall not use or
divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice
the public interest.
Executive privilege covers all confidential or classified information
between the President and the public officers covered by this executive
order, including:
Conversations and correspondence between the President and the
public official covered by this executive order (Almonte vs. Vasquez G.R.
No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002);
Military, diplomatic and other national security matters which in the
interest of national security should not be divulged (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion
of treaties and executive agreements (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive
order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are covered
by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the judgment of
the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All
public officials enumerated in Section 2 (b) hereof shall secure prior
consent of the President prior to appearing before either House of
Congress to ensure the observance of the principle of separation of
powers, adherence to the rule on executive privilege and respect for the
rights of public officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from
Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him “that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be
able to attend the same without the consent of the President, pursuant
to [E.O. 464]” and that “said officials have not secured the required
consent from the President.” On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga
sent a letter9 to Senator Biazon, Chairperson of the Committee on
National Defense and Security, informing him “that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of
the [AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President” and
“that no approval has been granted by the President to any AFP officer
to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005.”
Despite the communications received from Executive Secretary Ermita
and Gen. Senga, the investigation scheduled by the Committee on
National Defense and Security pushed through, with only Col. Balutan
and Brig. Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from
testifying before legislative inquiries without her approval, Brig. Gen.
Gudani and Col. Balutan were relieved from their military posts and
were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in
response to the invitations sent to the following government officials:
Light Railway Transit Authority Administrator Melquiades Robles, Metro
Rail Transit Authority Administrator Roberto Lastimoso, Department of
Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential
Legal Counsel Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General
Manager Jose Serase II, Monetary Board Member Juanita Amatong,
Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri. 10NorthRail President Cortes sent
personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659,
169660, and 169667, for certiorari and prohibition, were filed before
this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members SaturOcampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels for the Defense of
Liberties (CODAL), a group of lawyers dedicated to the promotion of
justice, democracy and peace, all claiming to have standing to file the
suit because of the transcendental importance of the issues they posed,
pray, in their petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary Ermita, in his
capacity as Executive Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose sanctions on
officials who appear before Congress due to congressional summons.
Additionally, petitioners claim that E.O. 464 infringes on their rights and
impedes them from fulfilling their respective obligations. Thus, Bayan
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Muna alleges that E.O. 464 infringes on its right as a political party
entitled to participate in governance; SaturOcampo, et al. allege that
E.O. 464 infringes on their rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws; Courage alleges that the tenure
of its members in public office is predicated on, and threatened by, their
submission to the requirements of E.O. 464 should they be summoned
by Congress; and CODAL alleges that its members have a sworn duty to
uphold the rule of law, and their rights to information and to
transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are
affected by the enforcement of E.O. 464, prays in his petition that E.O.
464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG),
alleging that as a coalition of 17 legal resource non-governmental
organizations engaged in developmental lawyering and work with the
poor and marginalized sectors in different parts of the country, and as
an organization of citizens of the Philippines and a part of the general
public, it has legal standing to institute the petition to enforce its
constitutional right to information on matters of public concern, a right
which was denied to the public by E.O. 464, 13 prays, that said order be
declared null and void for being unconstitutional and that respondent
Executive Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it
has a vital interest in the resolution of the issue of the validity of E.O.
464 for it stands to suffer imminent and material injury, as it has already
sustained the same with its continued enforcement since it directly
interferes with and impedes the valid exercise of the Senate’s powers
and functions and conceals information of great public interest and
concern, filed its petition for certiorari and prohibition, docketed as G.R.
No. 169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with
members duly elected into the Philippine Senate and House of
Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the
challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the
conduct of inquiries in aid of legislation and transcendental issues need
to be resolved to avert a constitutional crisis between the executive and
legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated
his invitation to Gen. Senga for him and other military officers to attend
the hearing on the alleged wiretapping scheduled on February 10, 2005.
Gen. Senga replied, however, by letter 15 dated February 8, 2006, that
“[p]ursuant to Executive Order No. 464, th[e] Headquarters requested
for a clearance from the President to allow [them] to appear before the
public hearing” and that “they will attend once [their] request is
approved by the President.” As none of those invited appeared, the
hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the
GinintuangMasaganangAni program of the Department of Agriculture
(DA), several Cabinet officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12, 2005 but most of
them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive
Director Norlito R. Gicana, 17 and those from the Department of Budget
and Management18having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006,
Press Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ
Secretary Raul M. Gonzalez 20 and Department of Interior and Local
Government Undersecretary Marius P. Corpus 21 communicated their
inability to attend due to lack of appropriate clearance from the
President pursuant to E.O. 464. During the February 13, 2005 budget
hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent
members of the Board of Governors of the Integrated Bar of the
Philippines, as taxpayers, and the Integrated Bar of the Philippines as the
official organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public interest, filed
their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O.
464.
In the oral arguments on the petitions conducted on February 21, 2006,
the following substantive issues were ventilated: (1) whether
respondents committed grave abuse of discretion in implementing E.O.
464 prior to its publication in the Official Gazette or in a newspaper of
general circulation; and (2) whether E.O. 464 violates the following
provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec.
7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art.
XIII, Sec. 16. The procedural issue of whether there is an actual case or
controversy that calls for judicial review was not taken up; instead, the
parties were instructed to discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were directed to
submit their respective memoranda, paying particular attention to the
following propositions: (1) that E.O. 464 is, on its face, unconstitutional;
and (2) assuming that it is not, it is unconstitutional as applied in four
instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail
investigation (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
memoranda on March 7, 2006, while those in G.R. No. 169667 25 and G.R.
No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in
G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them. 29
Petitioners submit that E.O. 464 violates the following constitutional
provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray
in their consolidated memorandum38 on March 13, 2006 for the
dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to information on
matters of public concern; and
3. Whether respondents have committed grave abuse of discretion
when they implemented E.O. 464 prior to its publication in a newspaper
of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O.
464, ascertainment of whether the requisites for a valid exercise of the
Court’s power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have standing to challenge the
88
validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lismota of the
case.39
Except with respect to the requisites of standing and existence of an
actual case or controversy where the disagreement between the parties
lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in
G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting
to the non-appearance of several officials of the executive department
in the investigations called by the different committees of the Senate,
were brought to vindicate the constitutional duty of the Senate or its
different committees to conduct inquiry in aid of legislation or in the
exercise of its oversight functions. They maintain that Representatives
Ocampo et al. have not shown any specific prerogative, power, and
privilege of the House of Representatives which had been effectively
impaired by E.O. 464, there being no mention of any investigation called
by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing the
marginalized and underrepresented, and that of the other petitioner
groups and individuals who profess to have standing as advocates and
defenders of the Constitution, respondents contend that such interest
falls short of that required to confer standing on them as parties
“injured-in-fact.”40
Respecting petitioner Chavez, respondents contend that Chavez may not
claim an interest as a taxpayer for the implementation of E.O. 464 does
not involve the exercise of taxing or spending power. 41
With regard to the petition filed by the Senate, respondents argue that
in the absence of a personal or direct injury by reason of the issuance of
E.O. 464, the Senate and its individual members are not the proper
parties to assail the constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism
Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes
Office,43respondents assert that to be considered a proper party, one
must have a personal and substantial interest in the case, such that he
has sustained or will sustain direct injury due to the enforcement of E.O.
464.44
That the Senate of the Philippines has a fundamental right essential not
only for intelligent public decision-making in a democratic system, but
more especially for sound legislation 45 is not disputed. E.O. 464,
however, allegedly stifles the ability of the members of Congress to
access information that is crucial to law-making. 46 Verily, the Senate,
including its individual members, has a substantial and direct interest
over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to
maintain inviolate the prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives
as legislators.47
In the same vein, party-list representatives SaturOcampo (Bayan Muna),
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin
Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza
(Gabriela) are allowed to sue to question the constitutionality of E.O.
464, the absence of any claim that an investigation called by the House
of Representatives or any of its committees was aborted due to the
implementation of E.O. 464 notwithstanding, it being sufficient that a
claim is made that E.O. 464 infringes on their constitutional rights and
duties as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the implementation of
laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives
in the 2004 elections and is, therefore, entitled to participate in the
legislative process consonant with the declared policy underlying the
party list system of affording citizens belonging to marginalized and
underrepresented sectors, organizations and parties who lack well-
defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to
file their petitions, passing on the standing of their co-petitioners
Courage and Codal is rendered unnecessary. 49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members, 50 invoke their
constitutional right to information on matters of public concern,
asserting that the right to information, curtailed and violated by E.O.
464, is essential to the effective exercise of other constitutional
rights51 and to the maintenance of the balance of power among the
three branches of the government through the principle of checks and
balances.52
It is well-settled that when suing as a citizen, the interest of the
petitioner in assailing the constitutionality of laws, presidential decrees,
orders, and other regulations, must be direct and personal. In Franciso v.
House of Representatives, 53 this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal
standing in view of the transcendental issues raised in its petition which
this Court needs to resolve in order to avert a constitutional crisis. For it
to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is
public) or other assets involved in the case, (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government, and (3)
the lack of any party with a more direct and specific interest in raising
the questions being raised.54 The first and last determinants not being
present as no public funds or assets are involved and petitioners in G.R.
Nos. 169777 and 169659 have direct and specific interests in the
resolution of the controversy, petitioner PDP-Laban is bereft of standing
to file its petition. Its allegation that E.O. 464 hampers its legislative
agenda is vague and uncertain, and at best is only a “generalized
interest” which it shares with the rest of the political parties. Concrete
injury, whether actual or threatened, is that indispensable element of a
dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55In fine, PDP-Laban’s alleged interest as a political
party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of
the executive officials invited by the Senate to its hearings after the
issuance of E.O. 464, particularly those on the NorthRail project and the
wiretapping controversy.
Respondents counter that there is no case or controversy, there being
no showing that President Arroyo has actually withheld her consent or
prohibited the appearance of the invited officials. 56 These officials, they
claim, merely communicated to the Senate that they have not yet
secured the consent of the President, not that the President prohibited
their attendance.57Specifically with regard to the AFP officers who did
not attend the hearing on September 28, 2005, respondents claim that
the instruction not to attend without the President’s consent was based
on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power of
preventing the appearance of officials before Congress, and that such
apprehension is not sufficient for challenging the validity of E.O. 464.
The Court finds respondents’ assertion that the President has not
withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case or
controversy insofar as E.O. 464 is concerned. For E.O. 464 does not
require either a deliberate withholding of consent or an express
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prohibition issuing from the President in order to bar officials from
appearing before Congress.
As the implementation of the challenged order has already resulted in
the absence of officials invited to the hearings of petitioner Senate of
the Philippines, it would make no sense to wait for any further event
before considering the present case ripe for adjudication. Indeed, it
would be sheer abandonment of duty if this Court would now refrain
from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials
before Congress, deprives Congress of the information in the possession
of these officials. To resolve the question of whether such withholding of
information violates the Constitution, consideration of the general
power of Congress to obtain information, otherwise known as the power
of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of
Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.
(Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein—the BatasangPambansa—
and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless,
in Arnault v. Nazareno,58 a case decided in 1950 under that Constitution,
the Court already recognized that the power of inquiry is inherent in the
power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous
purchase of the Buenavista and Tambobong Estates by the Rural
Progress Administration. Arnault, who was considered a leading witness
in the controversy, was called to testify thereon by the Senate. On
account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for
contempt. Upholding the Senate’s power to punish Arnault for
contempt, this Court held:
Although there is no provision in the Constitution expressly investing
either House of Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the
legislative function as to be implied. In other words, the power of inquiry
—with process to enforce it—is an essential and appropriate auxiliary to
the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which
the legislation is intended to affect or change; and where the legislative
body does not itself possess the requisite information—which is not
infrequently true—recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to
obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the
executive branch may be deduced from the same case. The power of
inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and
those which may be a proper subject of investigation are one. It follows
that the operation of government, being a legitimate subject for
legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of
inquiry. Besides being related to the expenditure of public funds of
which Congress is the guardian, the transaction, the Court held, “also
involved government agencies created by Congress and officers whose
positions it is within the power of Congress to regulate or even abolish.”
Since Congress has authority to inquire into the operations of the
executive branch, it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most familiar
with and informed on executive operations.
As discussed in Arnault, the power of inquiry, “with process to enforce
it,” is grounded on the necessity of information in the legislative process.
If the information possessed by executive officials on the operation of
their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to
compel the disclosure thereof.
As evidenced by the American experience during the so-called
“McCarthy era,” however, the right of Congress to conduct inquiries in
aid of legislation is, in theory, no less susceptible to abuse than executive
or judicial power. It may thus be subjected to judicial review pursuant to
the Court’s certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the
inquiry itself might not properly be in aid of legislation, and thus beyond
the constitutional power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way for Congress to
avoid such a result as occurred in Bengzon is to indicate in its invitations
to the public officials concerned, or to any person for that matter, the
possible needed statute which prompted the need for the inquiry. Given
such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that
proscribe the legislative power of inquiry. The provision requires that
the inquiry be done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons
appearing in or affected by such inquiries be respected, an imposition
that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the
proper suit filed by the persons affected, even if they belong to the
executive branch. Nonetheless, there may be exceptional circumstances,
none appearing to obtain at present, wherein a clear pattern of abuse of
the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the
executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive
Branch to forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the
rubric of “executive privilege.” Since this term figures prominently in the
challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial
for determining the constitutionality of E.O. 464.
Executive privilege
The phrase “executive privilege” is not new in this jurisdiction. It has
been used even prior to the promulgation of the 1986
Constitution.63 Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United
States.
Schwartz defines executive privilege as “the power of the Government
to withhold information from the public, the courts, and the
Congress.”64Similarly, Rozell defines it as “the right of the President and
high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public.” 65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It
has encompassed claims of varying kinds. 67 Tribe, in fact, comments that
while it is customary to employ the phrase “executive privilege,” it may
be more accurate to speak of executive privileges “since presidential
refusals to furnish information may be actuated by any of at least three
distinct kinds of considerations, and may be asserted, with differing
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degrees of success, in the context of either judicial or legislative
investigations.”
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with Washington, on the ground
that the information is of such nature that its disclosure would subvert
crucial military or diplomatic objectives. Another variety is the
informer’s privilege, or the privilege of the Government not to disclose
the identity of persons who furnish information of violations of law to
officers charged with the enforcement of that law. Finally, a generic
privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a
variety of privileges to resist disclosure of information the confidentiality
of which they felt was crucial to fulfillment of the unique role and
responsibilities of the executive branch of our government. Courts ruled
early that the executive had a right to withhold documents that might
reveal military or state secrets. The courts have also granted the
executive a right to withhold the identity of government informers in
some circumstances and a qualified right to withhold information
related to pending investigations. xx x”69 (Emphasis and underscoring
supplied)
The entry in Black’s Law Dictionary on “executive privilege” is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of
powers, exempts the executive from disclosure requirements applicable
to the ordinary citizen or organization where such exemption is
necessary to the discharge of highly important executive responsibilities
involved in maintaining governmental operations, and extends not only
to military and diplomatic secrets but also to documents integral to an
appropriate exercise of the executive’ domestic decisional and policy
making functions, that is, those documents reflecting the frank
expression necessary in intra-governmental advisory and deliberative
communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances.
For in determining the validity of a claim of privilege, the question that
must be asked is not only whether the requested information falls within
one of the traditional privileges, but also whether that privilege should
be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v.
Nixon,72 decided in 1974. In issue in that case was the validity of
President Nixon’s claim of executive privilege against a subpoena issued
by a district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The claim of
privilege was based on the President’s general interest in the
confidentiality of his conversations and correspondence. The U.S. Court
held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to the
extent that it relates to the effective discharge of a President’s powers.
The Court, nonetheless, rejected the President’s claim of privilege, ruling
that the privilege must be balanced against the public interest in the fair
administration of criminal justice. Notably, the Court was careful to
clarify that it was not there addressing the issue of claims of privilege in
a civil litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against
Congress are rare.73 Despite frequent assertion of the privilege to deny
information to Congress, beginning with President Washington’s refusal
to turn over treaty negotiation records to the House of Representatives,
the U.S. Supreme Court has never adjudicated the issue. 74 However, the
U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized the President’s
privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S.
Supreme Court in Nixon, the Court of Appeals weighed the public
interest protected by the claim of privilege against the interest that
would be served by disclosure to the Committee. Ruling that the balance
favored the President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by
this Court in Almonte v. Vasquez. 77Almonte used the term in reference
to the same privilege subject of Nixon. It quoted the following portion of
the Nixon decision which explains the basis for the privilege:
“The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of confidentiality of
judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the
necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives
in the process of shaping policies and making decisions and to do so in a
way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of
government and inextricably rooted in the separation of powers under
the Constitution x xx ” (Emphasis and underscoring supplied)
Almonte involved a subpoena ducestecum issued by the Ombudsman
against the therein petitioners. It did not involve, as expressly stated in
the decision, the right of the people to information. 78 Nonetheless, the
Court recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in
substance if not in name, that executive privilege may be claimed
against citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a “governmental privilege against
public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters.” 80 The same case held
that closed-door Cabinet meetings are also a recognized limitation on
the right to information.
Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the
right to information does not extend to matters recognized as
“privileged information under the separation of powers,” 82 by which the
Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused were
exempted from the right to information.
From the above discussion on the meaning and scope of executive
privilege, both in the United States and in this jurisdiction, a clear
principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to
certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it
is made. Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered
by them to secure the consent of the President prior to appearing
before Congress. There are significant differences between the two
provisions, however, which constrain this Court to discuss the validity of
these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike
Section 3, require a prior determination by any official whether they are
covered by E.O. 464. The President herself has, through the challenged
order, made the determination that they are. Further, unlike also
Section 3, the coverage of department heads under Section 1 is not
made to depend on the department heads’ possession of any
information which might be covered by executive privilege. In fact, in
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marked contrast to Section 3 vis-à-vis Section 2, there is no reference to
executive privilege at all. Rather, the required prior consent under
Section 1 is grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative,
with the consent of the President, or upon the request of either House,
as the rules of each House shall provide, appear before and be heard by
such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of
the State or the public interest so requires and the President so states in
writing, the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the
question hour must be interpreted vis-à-vis Section 21 which provides
for the power of either House of Congress to “conduct inquiries in aid of
legislation.” As the following excerpt of the deliberations of the
Constitutional Commission shows, the framers were aware that these
two provisions involved distinct functions of Congress.
MR. MAAMBONG. xxx When we amended Section 20 [now Section 22
on the Question Hour] yesterday, I noticed that members of the Cabinet
cannot be compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular problem in this
regard, Madam President, because in our experience in the Regular
BatasangPambansa—as the Gentleman himself has experienced in the
interim BatasangPambansa—one of the most competent inputs that we
can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We
usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez
when he said that the fact that the Cabinet ministers may refuse to
come to the House of Representatives or the Senate [when requested
under Section 22] does not mean that they need not come when they
are invited or subpoenaed by the committee of either House when it
comes to inquiries in aid of legislation or congressional investigation.
According to Commissioner Suarez, that is allowed and their presence
can be had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because Section 20
refers only to what was originally the Question Hour, whereas, Section
21 would refer specifically to inquiries in aid of legislation, under which
anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and
the question hour. While attendance was meant to be discretionary in
the question hour, it was compulsory in inquiries in aid of legislation.
The reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department
heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in recognition of this
distinction, later moved the provision on question hour from its original
position as Section 20 in the original draft down to Section 31, far from
the provision on inquiries in aid of legislation. This gave rise to the
following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee
on Style] We now go, Mr. Presiding Officer, to the Article on Legislative
and may I request the chairperson of the Legislative Department,
Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction
to the Question Hour. I propose that instead of putting it as Section 31, it
should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding
Officer.
MR. MAAMBONG. Actually, we considered that previously when we
sequenced this but we reasoned that in Section 21, which is Legislative
Inquiry, it is actually a power of Congress in terms of its own lawmaking;
whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation.
And so we put Question Hour as Section 31. I hope Commissioner Davide
will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative
power, and it is precisely as a complement to or a supplement of the
Legislative Inquiry. The appearance of the members of Cabinet would be
very, very essential not only in the application of check and balance but
also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in
the suggestion of Commissioner Davide. In other words, we are
accepting that and so this Section 31 would now become Section 22.
Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations,
Commissioners Davide and Maambong proceeded from the same
assumption that these provisions pertained to two different functions of
the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davide’s only
concern was that the two provisions on these distinct powers be placed
closely together, they being complementary to each other. Neither
Commissioner considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the
above-quoted exchange, Commissioner Maambong’s committee—the
Committee on Style—shared the view that the two provisions reflected
distinct functions of Congress. Commissioner Davide, on the other hand,
was speaking in his capacity as Chairman of the Committee on the
Legislative Department. His views may thus be presumed as
representing that of his Committee.
In the context of a parliamentary system of government, the “question
hour” has a definite meaning. It is a period of confrontation initiated by
Parliament to hold the Prime Minister and the other ministers
accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain as the question
period. There was a specific provision for a question hour in the 1973
Constitution86 which made the appearance of ministers mandatory. The
same perfectly conformed to the parliamentary system established by
that Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the
immediate accountability of the Prime Minister and the Cabinet to the
National Assembly. They shall be responsible to the National Assembly
for the program of government and shall determine the guidelines of
national policy. Unlike in the presidential system where the tenure of
office of all elected officials cannot be terminated before their term
expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this
confidence is lost the Prime Minister and the Cabinet may be changed. 87
The framers of the 1987 Constitution removed the mandatory nature of
such appearance during the question hour in the present Constitution so
as to conform more fully to a system of separation of powers. 88 To that
extent, the question hour, as it is presently understood in this
jurisdiction, departs from the question period of the parliamentary
system. That department heads may not be required to appear in a
question hour does not, however, mean that the legislature is rendered
powerless to elicit information from them in all circumstances. In fact, in
light of the absence of a mandatory question period, the need to
enforce Congress’ right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:
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Indeed, if the separation of powers has anything to tell us on the subject
under discussion, it is that the Congress has the right to obtain
information from any source—even from officials of departments and
agencies in the executive branch. In the United States there is, unlike the
situation which prevails in a parliamentary system such as that in Britain,
a clear separation between the legislative and executive branches. It is
this very separation that makes the congressional right to obtain
information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to
be carried out. The absence of close rapport between the legislative and
executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of
an institution such as the British question period have perforce made
reliance by the Congress upon its right to obtain information from the
executive essential, if it is intelligently to perform its legislative tasks.
Unless the Congress possesses the right to obtain executive information,
its power of oversight of administration in a system such as ours
becomes a power devoid of most of its practical content, since it
depends for its effectiveness solely upon information parceled out ex
gratia by the executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary
to each other, should not be considered as pertaining to the same
power of Congress. One specifically relates to the power to conduct
inquiries in aid of legislation, the aim of which is to elicit information
that may be used for legislation, while the other pertains to the power
to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how department heads
are implementing the statutes which it has issued, its right to such
information is not as imperative as that of the President to whom, as
Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in
keeping with the separation of powers, states that Congress may only
request their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is “in aid of legislation” under
Section 21, the appearance is mandatory for the same reasons stated in
Arnault.90
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit of
legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under Section 22
find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply with
its demands for information.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are
department heads. Only one executive official may be exempted from
this power—the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of
impeachment. It is based on her being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of
government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt
from this power of inquiry. Unlike the Presidency, judicial power is
vested in a collegial body; hence, each member thereof is exempt on the
basis not only of separation of powers but also on the fiscal autonomy
and the constitutional independence of the judiciary. This point is not in
dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it
during the oral argument upon interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of
the Constitution, the Court now proceeds to pass on the
constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of
the Constitution and the absence of any reference to inquiries in aid of
legislation, must be construed as limited in its application to
appearances of department heads in the question hour contemplated in
the provision of said Section 22 of Article VI. The reading is dictated by
the basic rule of construction that issuances must be interpreted, as
much as possible, in a way that will render it constitutional.
The requirement then to secure presidential consent under Section 1,
limited as it is only to appearances in the question hour, is valid on its
face. For under Section 22, Article VI of the Constitution, the appearance
of department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department
heads in inquiries in aid of legislation. Congress is not bound in such
instances to respect the refusal of the department head to appear in
such inquiry, unless a valid claim of privilege is subsequently made,
either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in
Section 2(b) to secure the consent of the President prior to appearing
before either house of Congress. The enumeration is broad. It covers all
senior officials of executive departments, all officers of the AFP and the
PNP, and all senior national security officials who, in the judgment of the
heads of offices designated in the same section (i.e. department heads,
Chief of Staff of the AFP, Chief of the PNP, and the National Security
Adviser), are “covered by the executive privilege.”
The enumeration also includes such other officers as may be determined
by the President. Given the title of Section 2—”Nature, Scope and
Coverage of Executive Privilege”—, it is evident that under the rule of
ejusdem generis, the determination by the President under this
provision is intended to be based on a similar finding of coverage under
executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states
that executive privilege actually covers persons. Such is a misuse of the
doctrine. Executive privilege, as discussed above, is properly invoked in
relation to specific categories of information and not to categories of
persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature,
scope and coverage of executive privilege, the reference to persons
being “covered by the executive privilege” may be read as an
abbreviated way of saying that the person is in possession of
information which is, in the judgment of the head of office concerned,
privileged as defined in Section 2(a). The Court shall thus proceed on the
assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the
President that an official is “covered by the executive privilege,” such
official is subjected to the requirement that he first secure the consent
of the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the same
is permitted by the President. The proviso allowing the President to give
its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination
by a head of office, authorized by the President under E.O. 464, or by
the President herself, that such official is in possession of information
that is covered by executive privilege. This determination then becomes
the basis for the official’s not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his
failure to be present, such invocation must be construed as a declaration
to Congress that the President, or a head of office authorized by the
President, has determined that the requested information is privileged,
and that the President has not reversed such determination. Such
declaration, however, even without mentioning the term “executive
privilege,” amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the
basis of executive privilege. Verily, there is an implied claim of privilege.
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The letter dated September 28, 2005 of respondent Executive Secretary
Ermita to Senate President Drilon illustrates the implied nature of the
claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the
Whole regarding the Northrail Project of the North Luzon Railways
Corporation on 29 September 2005 at 10:00 a.m., please be informed
that officials of the Executive Department invited to appear at the
meeting will not be able to attend the same without the consent of the
President, pursuant to Executive Order No. 464 (s. 2005), entitled
“Ensuring Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For The
Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of
Legislation Under The Constitution, And For Other Purposes”. Said
officials have not secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the
matter on which these officials are being requested to be resource
persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of
consent from the President under E.O. 464, they cannot attend the
hearing.
Significant premises in this letter, however, are left unstated,
deliberately or not. The letter assumes that the invited officials are
covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated
head of office or the President, that the invited official possesses
information that is covered by executive privilege. Thus, although it is
not stated in the letter that such determination has been made, the
same must be deemed implied. Respecting the statement that the
invited officials have not secured the consent of the President, it only
means that the President has not reversed the standing prohibition
against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion
that the executive branch, either through the President or the heads of
offices authorized under E.O. 464, has made a determination that the
information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President.
In fine, an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of
whether executive privilege may be invoked against Congress, it is
gathered from Chavez v. PEA that certain information in the possession
of the executive may validly be claimed as privileged even against
Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The
information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings
which, like internal-deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are
recognized as confidential. This kind of information cannot be pried
open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence
of decision-making of those tasked to exercise Presidential, Legislative
and Judicial power. This is not the situation in the instant
case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid
by the mere fact that it sanctions claims of executive privilege. This
Court must look further and assess the claim of privilege authorized by
the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to
case basis, examining the ground invoked therefor and the particular
circumstances surrounding it, there is, in an implied claim of privilege, a
defect that renders it invalid per se. By its very nature, and as
demonstrated by the letter of respondent Executive Secretary quoted
above, the implied claim authorized by Section 3 of E.O. 464 is not
accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the privilege
under the challenged order, Congress is left to speculate as to which
among them is being referred to by the executive. The enumeration is
not even intended to be comprehensive, but a mere statement of what
is included in the phrase “confidential or classified information between
the President and the public officers covered by this executive order.”
Certainly, Congress has the right to know why the executive considers
the requested information privileged. It does not suffice to merely
declare that the President, or an authorized head of office, has
determined that it is so, and that the President has not overturned that
determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the
message is couched in terms that, on first impression, do not seem like a
claim of privilege only makes it more pernicious. It threatens to make
Congress doubly blind to the question of why the executive branch is not
providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to
disclose information, must, therefore, be clearly asserted. As U.S. v.
Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it
can neither be claimed nor waived by a private party. It is not to be
lightly invoked. There must be a formal claim of privilege, lodged by the
head of the department which has control over the matter, after actual
personal consideration by that officer. The court itself must determine
whether the circumstances are appropriate for the claim of privilege,
and yet do so without forcing a disclosure of the very thing the privilege
is designed to protect.92(Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of
the traditional privileges, or whether, given the circumstances in which it
is made, it should be respected. 93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the
Ombudsman in Almonte v. Vasquez 94and, more in point, against a
committee of the Senate in Senate Select Committee on Presidential
Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm
resulting from disclosure impossible, thereby preventing the Court from
balancing such harm against plaintiffs’ needs to determine whether to
override any claims of privilege. 96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to
perform this balancing operation. In stating its objection to claimant’s
interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of
opinion that non-disclosure is designed to protect. The government has
not shown—nor even alleged—that those who evaluated claimant’s
product were involved in internal policymaking, generally, or in this
particular instance. Privilege cannot be set up by an unsupported claim.
The facts upon which the privilege is based must be established. To find
these interrogatories objectionable, this Court would have to assume
that the evaluation and classification of claimant’s products was a
matter of internal policy formulation, an assumption in which this Court
is unwilling to indulge sua sponte. 98 (Emphasis and underscoring
supplied)
Mobil Oil Corp. v. Department of Energy 99 similarly emphasizes that “an
agency must provide ‘precise and certain’ reasons for preserving the
confidentiality of requested information.”
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific
designation and description of the documents within its scope as well as
precise and certain reasons for preserving their confidentiality. Without
this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now
stands, the Court has little more than its suasponte speculation with
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which to weigh the applicability of the claim. An improperly asserted
claim of privilege is no claim of privilege. Therefore, despite the fact that
a claim was made by the proper executive as Reynolds requires, the
Court can not recognize the claim in the instant case because it is legally
insufficient to allow the Court to make a just and reasonable
determination as to its applicability. To recognize such a broad claim in
which the Defendant has given no precise or compelling reasons to
shield these documents from outside scrutiny, would make a farce of
the whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands
no less than a claim of privilege clearly stating the grounds therefor.
Apropos is the following ruling in McPhaul v. U.S: 102
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70
S. Ct. 724, is highly relevant to these questions. For it is as true here as it
was there, that ‘if (petitioner) had legitimate reasons for failing to
produce the records of the association, a decent respect for the House
of Representatives, by whose authority the subpoenas issued, would
have required that (he) state (his) reasons for noncompliance upon the
return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by
taking other appropriate steps to obtain the records. ‘To deny the
Committee the opportunity to consider the objection or remedy is in
itself a contempt of its authority and an obstruction of its processes. His
failure to make any such statement was “a patent evasion of the duty of
one summoned to produce papers before a congressional committee[,
and] cannot be condoned.” (Emphasis and underscoring supplied;
citations omitted)
Upon the other hand, Congress must not require the executive to state
the reasons for the claim with such particularity as to compel disclosure
of the information which the privilege is meant to protect. 103 A useful
analogy in determining the requisite degree of particularity would be the
privilege against self-incrimination. Thus, Hoffman v. U.S. 104 declares:
The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself—his say-so does
not of itself establish the hazard of incrimination. It is for the court to
say whether his silence is justified, and to require him to answer if ‘it
clearly appears to the court that he is mistaken.’ However, if the
witness, upon interposing his claim, were required to prove the hazard
in the sense in which a claim is usually required to be established in
court, he would be compelled to surrender the very protection which
the privilege is designed to guarantee. To sustain the privilege, it need
only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result.” x xx (Emphasis and underscoring
supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section
2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead
of providing precise and certain reasons for the claim, it merely invokes
E.O. 464, coupled with an announcement that the President has not
given her consent. It is woefully insufficient for Congress to determine
whether the withholding of information is justified under the
circumstances of each case. It severely frustrates the power of inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely
provides guidelines, binding only on the heads of office mentioned in
Section 2(b), on what is covered by executive privilege. It does not
purport to be conclusive on the other branches of government. It may
thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the
challenged order the alleged unlawful delegation of authority to the
heads of offices in Section 2(b). Petitioner Senate of the Philippines, in
particular, cites the case of the United States where, so it claims, only
the President can assert executive privilege to withhold information
from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the
head of office determines that a certain information is privileged, such
determination is presumed to bear the President’s authority and has the
effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing
the appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional
nature of the privilege. Executive privilege, as already discussed, is
recognized with respect to information the confidential nature of which
is crucial to the fulfillment of the unique role and responsibilities of the
executive branch,105 or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive
responsibilities.106The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to
outweigh the public interest in enforcing that obligation in a particular
case.
In light of this highly exceptional nature of the privilege, the Court finds
it essential to limit to the President the power to invoke the privilege.
She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state
that the authority is “By order of the President,” which means that he
personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her
subordinates to exercise such power. There is even less reason to
uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is
further invalid on this score.
It follows, therefore, that when an official is being summoned by
Congress on a matter which, in his own judgment, might be covered by
executive privilege, he must be afforded reasonable time to inform the
President or the Executive Secretary of the possible need for invoking
the privilege. This is necessary in order to provide the President or the
Executive Secretary with fair opportunity to consider whether the
matter indeed calls for a claim of executive privilege. If, after the lapse of
that reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure
of the official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring
officials to secure the consent of the President under Section 3 of E.O.
464 is to ensure “respect for the rights of public officials appearing in
inquiries in aid of legislation.” That such rights must indeed be respected
by Congress is an echo from Article VI Section 21 of the Constitution
mandating that “[t]he rights of persons appearing in or affected by such
inquiries shall be respected.”
In light of the above discussion of Section 3, it is clear that it is
essentially an authorization for implied claims of executive privilege, for
which reason it must be invalidated. That such authorization is partly
motivated by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by it, and
not with the demands of citizens for information pursuant to their right
to information on matters of public concern. Petitioners are not amiss in
claiming, however, that what is involved in the present controversy is
not merely the legislative power of inquiry, but the right of the people to
information.
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry and the
right of the people to information on matters of public concern. For one,
the demand of a citizen for the production of documents pursuant to his
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right to information does not have the same obligatory force as a nobles, and replace it with a presumption in favor of publicity, based on
subpoena ducestecum issued by Congress. Neither does the right to the doctrine of popular sovereignty. (Underscoring supplied) 109
information grant a citizen the power to exact testimony from Resort to any means then by which officials of the executive branch
government officials. These powers belong only to Congress and not to could refuse to divulge information cannot be presumed valid.
an individual citizen. Otherwise, we shall not have merely nullified the power of our
Thus, while Congress is composed of representatives elected by the legislature to inquire into the operations of government, but we shall
people, it does not follow, except in a highly qualified sense, that in have given up something of much greater value—our right as a people
every exercise of its power of inquiry, the people are exercising their to take part in government.
right to information. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
To the extent that investigations in aid of legislation are generally Executive Order No. 464 (series of 2005), “Ensuring Observance of the
conducted in public, however, any executive issuance tending to unduly Principle of Separation of Powers, Adherence to the Rule on Executive
limit disclosures of information in such investigations necessarily Privilege and Respect for the Rights of Public Officials Appearing in
deprives the people of information which, being presumed to be in aid Legislative Inquiries in Aid of Legislation Under the Constitution, and For
of legislation, is presumed to be a matter of public concern. The citizens Other Purposes,” are declared VOID. Sections 1 and 2(a) are, however,
are thereby denied access to information which they can use in VALID.
formulating their own opinions on the matter before Congress— SO ORDERED.
opinions which they can then communicate to their representatives and
other government officials through the various legal means allowed by
their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive
and be responsive to the people’s will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able
to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information
relating thereto can such bear fruit. 107 (Emphasis and underscoring
supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained above, just
as direct as its violation of the legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does
not follow that the same is exempt from the need for publication. On
the need for publishing even those statutes that do not directly apply to
people in general, Tañada v. Tuvera states:
The term “laws” should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general
albeit there are some that do not apply to them directly. An example is a
law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely
cannot be said that such a law does not affect the public although it
unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper party,
even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic
dictates that the challenged order must be covered by the publication
requirement. As explained above, E.O. 464 has a direct effect on the
right of the people to information on matters of public concern. It is,
therefore, a matter of public interest which members of the body politic
may question before this Court. Due process thus requires that the
people should have been apprised of this issuance before it was
implemented.
Conclusion
Congress undoubtedly has a right to information from the executive
branch whenever it is sought in aid of legislation. If the executive branch
withholds such information on the ground that it is privileged, it must so
assert it and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch
to evade congressional requests for information without need of clearly
asserting a right to do so and/or proffering its reasons therefor. By the
mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible.
For
[w]hat republican theory did accomplish…was to reverse the old
presumption in favor of secrecy, based on the divine right of kings and

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