G.R. No.

L-32096 October 24, 1970

ROMEO F. EDU, in his capacity as Land Transportation Commissioner, petitioner,

vs.
HON. VICENTE G. ERICTA in his capacity as Judge of the Court of First Instance of Rizal,
Br. XVIII, Quezon City, and TEDDY C. GALO respondents.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector C.
Fule and Solicitor Vicente A. Torres for petitioner.

Teddy C. Galo in his own behalf.

Judge Vicente Ericta in his own behalf.

FERNANDO, J.:.

Petitioner Romeo F. Edu, the Land Transportation Commissioner, would have us rule squarely
on the constitutionality of the Reflector Law1 in this proceeding for certiorari and prohibition
against respondent Judge, the Honorable Vicente G. Ericta of the Court of First Instance of
Rizal, Quezon City Branch, to annul and set aside his order for the issuance of a writ of
preliminary injunction directed against Administrative Order No. 2 of petitioner for the
enforcement of the aforesaid statute, in a pending suit in his court for certiorari and prohibition,
filed by the other respondent Teddy C. Galo assailing; the validity of such enactment as well as
such administrative order. Respondent Judge, in his answer, would join such a plea asking that
the constitutional and legal questions raised be decided "once and for all." Respondent Teddy
C. Galo who was quite categorical in his assertion that both the challenged legislation and the
administrative order transgress the constitutional requirements of due process and non-
delegation, is not averse either to such a definitive ruling. Considering the great public interest
involved and the reliance by respondent Galo and the allegation that the repugnancy to the
fundamental law could be discerned on the face of the statute as enacted and the executive
order as promulgated, this Court, sees no obstacle to the determination in this proceeding of the
constitutional questions raised. For reasons to be hereafter stated, we sustain the validity of the
Reflector Law and Administrative Order No. 2 issued in the implementation thereof, the
imputation of constitutional infirmity being at best flimsy and insubstantial.

As noted in the answer of respondent Judge, respondent Galo on his behalf and that of other
motorist filed on May 20, 1970 a suit for certiorari and prohibition with preliminary injunction
assailing the validity of the challenged Act as an invalid exercise of the police power, for being
violative of the due process clause. This he followed on May 28, 1970 with a manifestation
wherein he sought as an alternative remedy that, in the event that respondent Judge would hold
said statute constitutional, Administrative Order No. 2 of the Land Transportation Commissioner,
now petitioner, implementing such legislation be nullified as an undue exercise of legislative
power. There was a hearing on the plea for the issuance of a writ of preliminary injunction held
on May 27. 1970 where both parties were duly represented, but no evidence was presented.
The next day, on May 28, 1970, respondent Judge ordered the issuance of a preliminary
injunction directed against the enforcement of such administrative order. There was the day
after, a motion for its reconsideration filed by the Solicitor General representing petitioner. In the
meanwhile, the clerk of court of respondent Judge issued, on June 1, 1970 the writ of
preliminary injunction upon the filing of the required bond. The answer before the lower court
was filed by petitioner Edu on June 4, 1970. Thereafter, on June 9, 1970, respondent Judge
denied the motion for reconsideration of the order of injunction. Hence this petition for certiorari
and prohibition filed with this court on June 18, 1970.

In a resolution of June 22, 1970, this Court required respondents to file an answer to the petition
for certiorari and prohibition. Respondent Judge, the Honorable Vicente G. Ericta, did file his
answer on June 30, 1970 explaining why he restrained the enforcement of Administrative Order
No. 2 and, as noted at the outset, joining the Solicitor General in seeking that the legal
questions raised namely the constitutionality of the Reflector Law and secondly the validity of
Administrative Order No. 2 alleged to be in excess of the authority conferred on petitioner and
therefore violative of the principle of non-delegation of legislative power be definitely decided. It
was on until July 6, 1970 that respondent Galo filed his answer seeking the dismissal of this
petition concentrating on what he considered to be the patent invalidity of Administrative Order
No. 2 as it went beyond the authority granted by the Reflector Law, even assuming that it is
constitutional. In the meanwhile, on July 2, 1970, the petition was called for hearing with
Solicitor Vicente Torres appearing for petitioner and respondent Galo for himself. It was made
clear during the course of such argumentation that the matter of the constitutionality of the
Reflector Law was likewise under consideration by this Court. The case is thus ripe for decision.

We repeat that we find for petitioner and sustain the Constitutionality of the Reflector Law as
well as the validity of Administrative Order No. 2.

1. The threshold question is whether on the basis of the petition, the answers, and the oral
argument, it would be proper for this Court to resolve the issue of the constitutionality of the
Reflector Law. Our answer, as indicated, is in the affirmative. It is to be noted that the main
thrust of the petition before us is to demonstrate in a rather convincing fashion that the
challenged legislation does not suffer from the alleged constitutional infirmity imputed to it by the
respondent Galo. Since the special civil action for certiorari and prohibition filed before him
before respondent Judge would seek a declaration of nullity of such enactment by the attribution
of the violation the face thereof of the due process guarantee in the deprivation of property
rights, it would follow that there is sufficient basis for us to determine which view should prevail.
Moreover, any further hearing by respondent Judge would likewise to limited to a discussion of
the constitutional issues raised, no allegations of facts having made. This is one case then
where the question of validity is ripe for determination. If we do so, further effort need not be
wasted and time is saved moreover, the officials concerned as well as the public, both vitally
concerned with a final resolution of questions of validity, could know the definitive answer and
could act accordingly. There is a great public interest, as was mentioned, to be served by the
final disposition of such crucial issue, petitioner praying that respondent Galo be declared
having no cause of action with respondent Judge being accordingly directed to dismiss his suit.

There is another reinforcement to this avenue of approach. We have done so before in a

suit, Climaco v. Macadaeg, 2 involving the legality of a presidential directive. That was a petition
for the review and reversal of a writ of preliminary injunction issued by the then Judge
Macadaeg. We there announced that we "have decided to pass upon the question of the validity
of the presidential directive ourselves, believing that by doing so we would be putting an end to
a dispute, a delay in the disposition of which has caused considerable damage and injury to the
Government and to the tobacco planters themselves."
There is no principle of constitutional adjudication that bars this Court from similarly passing
upon the question of the validity of a legislative enactment in a proceeding before it to test the
propriety of the issuance of a preliminary injunction. The same felt need for resolving once and
for all the vexing question as to the constitutionality of a challenged enactment and thus serve
public interest exists. What we have done in the case of an order proceeding from one of the
coordinate branches, the executive, we can very well do in the matter before us involving the
alleged nullity of a legislative act. Accordingly, there is nothing to preclude the grant of the writs
prayed for, the burden of showing the constitutionality of the act having proved to be as will now
be shown too much for respondent Galo.

2. The Reflector Law reads in full: "(g) Lights and reflector when parked or disabled. —
Appropriate parking lights or flares visible one hundred meters away shall be displayed at a
corner of the vehicle whenever such vehicle is parked on highways or in places that are not
well-lighted or is placed in such manner as to endanger passing traffic. Furthermore, every
motor vehicle shall be provided at all times with built-in reflectors or other similar warning
devices either pasted, painted or attached to its front and back which shall likewise be visible at
light at least one hundred meters away. No vehicle not provided with any of the requirements
mentioned in this subsection shall be registered."3 It is thus obvious that the challenged statute
is a legislation enacted under the police power to promote public safety.

Justice Laurel, in the first leading decision after the Constitution came to force, Calalang v.
Williams,4 identified police power with state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare. Persons and property could
thus "be subjected to all kinds of restraints and burdens in order to secure the general comfort,
health and prosperity of the state." Shortly after independence in 1948, Primicias v.
Fugoso,5 reiterated the doctrine, such a competence being referred to as "the power to
prescribe regulations to promote the health, morals, peace, education, good order or safety, and
general welfare of the people." The concept was set forth in negative terms by Justice Malcolm
in a pre-Commonwealth decision as "that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort, safety and welfare of society."6 In that
sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc7 with the
totality of legislative power.

It is in the above sense the greatest and most powerful attribute of government. It is to quote
Justice Malcolm anew "the most essential, insistent, and at least illimitable of
powers," 8 extending as Justice Holmes aptly pointed out "to all the great public needs." 9 Its
scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: "Needs
that were narrow or parochial in the past may be interwoven in the present with the well-being of
the nation. What is critical or urgent changes with the
time." 10 The police power is thus a dynamic agency, suitably vague and far from precisely
defined, rooted in the conception that men in organizing the state and imposing upon its
government limitations to safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to insure communal peace, safety, good order, and welfare.

It would then be to overturn a host of decisions impressive for their number and unanimity were
this Court to sustain respondent Galo. 11 That we are not disposed to do, especially so as the
attack on the challenged statute ostensibly for disregarding the due process safeguard is
angularly unpersuasive. It would be to close one's eyes to the hazards of traffic in the evening to
condemn a statute of this character. Such an attitude betrays lack of concern for public safety.
How can it plausibly alleged then that there was no observance of due process equated as it
has always been with that is reasonable? The statute assailed is not infected with arbitrariness.
It is not the product of whim or caprice. It is far from oppressive. It is a legitimate response to a
felt public need. It can stand the test of the most unsymphatetic appraisal.

Respondent Galo is of a different mind, having been unable to resist the teaching of many
American State Court decisions referred to in the secondary source, American Jurisprudence
principally relied upon by him. He ought to have been cautioned against an indiscriminate
acceptance of such doctrines predicated on what was once a fundamental postulate in
American public law, laissez faire.

It is to be admitted that there was a period when such a concept did influence American court
decisions on constitutional law. As was explicitly stated by Justice Cardozo speaking of that era:
"Laissez-faire was not only a counsel of caution which would do well to heed. It was a
categorical imperative which statesmen as well as judges must obey." 12 For a long time
legislation tending to reduce economic inequality foundered on the rock that was the due
process clause, enshrining as it did the liberty of contract, based on such a basic assumption.

The New Deal administration of President Roosevelt more responsive to the social and
economic forces at work changed matters greatly. By 1937, there was a greater receptivity by
the American Supreme Court to an approach not too reverential of property rights. Even earlier,
in 1935, Professor Coker of Yale, speaking as a historian, could already discern a contrary drift.
He did note the expending range of governmental activity in the United States. 13 What is
undeniable is that by 1943, laissez-faire was no longer the dominant theory. In the language of
Justice Jackson in the leading case of West Virginia State Board of Education v.
Barnette: 14 "We must, transplant these rights to a soil in which the laissez-faire concept or non-
interference has withered at least as to economic affairs, and social advancements are
increasingly sought through closer integration of society and through expanded and
strengthened governmental controls."

While authoritative precedents from the United States federal and state jurisdictions were
deferred to when the Philippines was still under American rule, it cannot be said that
the laissez-faire principle was invariably adhered to by us even then As early as 1919, in the
leading case of Rubi v. Provincial Board of Mindoro, 15 Justice Malcolm already had occasion to
affirm: "The doctrines of laissez-faire and of unrestricted freedom of the individual, as axioms of
economic and political theory, are of the past. The modern period has shown a widespread
belief in the amplest possible demonstration of government activity. The Courts unfortunately
have sometimes seemed to trail after the other two branches of the Government in this
progressive march." People v. Pomar, 16 a 1924 decision which held invalid under the due
process clause a provision providing for maternity leave with pay thirty days before and thirty
days after confinement could be cited to show that such a principle did have its day. It is to be
remembered though that our Supreme Court had no other choice as the Philippines was then
under the United States, and only recently the year before, the American Supreme Court
in Adkins v. Children's Hospital, 17 in line with the laissez-faire theory, did hold that a statute
providing for minimum wages was constitutionally infirm.

What is more, to erase any doubts, the Constitutional Convention saw to it that the concept
of laissez-faire was rejected. It entrusted to our government the responsibility of coping with
social and economic problems with the commensurate power of control over economic affairs.
Thereby it could live up to its commitment to promote the general welfare through state action.
No constitutional objection to regulatory measures adversely affecting property rights, especially
so when public safety is the aim, is likely to be heeded, unless of course on the clearest and
most satisfactory proof of invasion of rights guaranteed by the Constitution. On such a showing,
there may be a declaration of nullity, but not because the laissez-faire principle was disregarded
but because the due process, equal protection, or non-impairment guarantees would call for
vindication.

To repeat, our Constitution which took effect in 1935 erased whatever doubts there might be on
that score. Its philosophy is a repudiation of laissez-faire. One of the leading members of the
Constitutional Convention, Manuel A. Roxas, later the first President of the Republic, made it
clear when he disposed of the objection of Delegate Jose Reyes of Sorsogon, who noted the
"vast extensions in the sphere of governmental functions" and the "almost unlimited power to
interfere in the affairs of industry and agriculture as well as to compete with existing business"
as "reflections of the fascination exerted by [the then] current tendencies" in other
jurisdictions. 18 He spoke thus: "My answer is that this constitution has definite and well defined
philosophy not only political but social and economic. ... If in this Constitution the gentlemen will
find declarations of economic policy they are there because they are necessary to safeguard the
interests and welfare of the Filipino people because we believe that the days have come when
in self-defense, a nation may provide in its constitution those safeguards, the patrimony, the
freedom to grow, the freedom to develop national aspirations and national interests, not to be
hampered by the artificial boundaries which a constitutional provision automatically imposes. 19

It was not expected then when in a concurring opinion, Justice Laurel, who likewise sat in the
Constitutional Convention and was one of its leading lights, explicitly affirmed in a concurring
opinion, later quoted with approval in the leading case of Antamok Goldfields Mining Co. v.
Court of Industrial Relations, 20 that the Constitution did away with the laissez-faire doctrine. In
the course of such concurring opinion and after noting the changes that have taken place calling
for a more affirmative role by the government and its undeniable power to curtail property rights,
he categorically declared the doctrine in People v. Pomar no longer retains "its virtuality as a
living principle." 21

It is in the light of such rejection of the laissez-faire principle that during the Commonwealth era,
no constitutional infirmity was found to have attached to legislation covering such subjects as
collective bargaining, 22 security of tenure, 23 minimum wages, 24 compulsory
arbitration, 25 the regulation of tenancy 26 as well as the issuance of
securities, 27 and control of public services. 28 So it is likewise under the Republic this Court
having given the seal of approval to more favorable tenancy laws, 29 nationalization of the retail
trade, 30 limitation of the hours of labor, 31 imposition of price control, 32 requirement of
separation pay for one month, 33 and social security scheme. 34

Respondent Galo thus could have profited by a little more diligence in the scrutiny of Philippine
decisions rendered with not unexpected regularity, during all the while our Constitution has been
in force attesting to the demise of such a shibboleth as laissez-faire. It was one of those fighting
faiths that time and circumstances had upset, to paraphrase Holmes. Yet respondent Galo
would seek to vivify and resurrect it. That, it would appear, is a vain quest, a futile undertaking.
The Reflector Law is thus immune from the attack so recklessly hurled against it. It can survive,
and quite easily too, the constitutional test.
3. The same lack of success marks the effort of respondent Galo to impugn the validity of
Administrative Order No. 2 issued by petitioner in his official capacity, duly approved by the
Secretary of Public Works and Communications, for being contrary to the principle of non-
delegation of legislative power. Such administrative order, which took effect on April 17, 1970,
has a provision on reflectors in effect reproducing what was set forth in the Act. Thus: "No motor
vehicles of whatever style, kind, make, class or denomination shall be registered if not equipped
with reflectors. Such reflectors shall either be factory built-in-reflector commercial glass
reflectors, reflection tape or luminous paint. The luminosity shall have an intensity to be
maintained visible and clean at all times such that if struck by a beam of light shall be visible
100 meters away at night." 35 Then came a section on dimensions, placement and color. As to
dimensions the following is provided for: "Glass reflectors — Not less than 3 inches in diameter
or not less than 3 inches square; Reflectorized Tape — At least 3 inches wide and 12 inches
long. The painted or taped area may be bigger at the discretion of the vehicle
owner." 36 Provision is then made as to how such reflectors are to be "placed, installed, pasted
or painted." 37 There is the further requirement that in addition to such reflectors there shall be
installed, pasted or painted four reflectors on each side of the motor vehicle parallel to those
installed, pasted or painted in front and those in the rear end of the body thereof. 38 The color
required of each reflectors, whether built-in, commercial glass, reflectorized tape or reflectorized
paint placed in the front part of any motor vehicle shall be amber or yellow and those placed on
the sides and in the rear shall all be red. 39

Penalties resulting from a violation thereof could be imposed. Thus: "Non-compliance with the
requirements contained in this Order shall be sufficient cause to refuse registration of the motor
vehicle affected and if already registered, its registration maybe suspended in pursuance of the
provisions of Section 16 of RA 4136; [Provided], However, that in the case of the violation of
Section 1(a) and (b) and paragraph (8) Section 3 hereof, a fine of not less than ten nor more
than fifty pesos shall be imposed. 40 It is not to be lost sight of that under Republic Act No. 4136,
of which the Reflector Law is an amendment, petitioner, as the Land Transportation
Commissioner, may, with the approval of the Secretary of Public Works and Communications,
issue rules and regulations for its implementation as long as they do not conflict with its
provisions. 41 It is likewise an express provision of the above statute that for a violation of any of
its provisions or regulations promulgated pursuant thereto a fine of not less than P10 nor not
less than P50 could be imposed. 42

It is a fundamental principle flowing from the doctrine of separation of powers that Congress
may not delegate its legislative power to the two other branches of the government, subject to
the exception that local governments may over local affairs participate in its exercise. What
cannot be delegated is the authority under the Constitution to make laws and to alter and repeal
them; the test is the completeness of the statute in all its term and provisions when it leaves the
hands of the legislature. To determine whether or not there is an undue delegation of legislative
power the inquiry must be directed to the scope and definiteness of the measure enacted. The
legislature does not abdicate its functions when it describes what job must be done, who is to do
it, and what is the scope of his authority. For a complex economy, that may indeed be the only
way in which the legislative process can go forward. A distinction has rightfully been made
between delegation of power to make the laws which necessarily involves a discretion as to
what it shall be, which constitutionally may not be done, and delegation of authority or discretion
as to its execution to exercised under and in pursuance of the law, to which no valid objection
call be made. The Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very
least that the legislature itself determines matters of principle and lay down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines
legislative policy, marks its limits, its maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command is to be effected. It
is the criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations.

The standard may be either express or implied. If the former, the non-delegation objection is
easily met. The standard though does not have to be spelled out specifically. It could be implied
from the policy and purpose of the act considered as a whole. In the Reflector Law, clearly the
legislative objective is public safety. That is sought to be attained as in Calalang v. Williams is
"safe transit upon the roads." 43

This is to adhere to the recognition given expression by Justice Laurel in a decision announced
not long after the Constitution came into force and effect that the principle of non-delegation
"has been made to adapt itself the complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of "subordinate legislation" not only in the United
States and England but in practically all modern governments." 44 He continued: "Accordingly,
with the growing complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a constantly growing
tendency toward the delegation of greater powers by the legislature and toward the approval of
the practice by the courts." 45 Consistency with the conceptual approach requires the reminder
that what is delegated is authority non-legislative in character, the completeness of the statute
when it leaves the hands of Congress being assumed.

Our later decisions speak to the same effect. Thus from, Justice J. B. L. Reyes in People vs.
Exconde: 46 "It is well establish in this jurisdiction that, while the making of laws is a non-
delegable activity that corresponds exclusively to Congress, nevertheless the latter may
constitutionally delegate authority to promulgate rules and regulations to implement a given
legislation and effectuate its policies, for the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and proved for the multifarious and complex
situations that may be met in carrying the law in effect. All that is required is that the regulation
should germane to the objects and purposes of the law; that the regulation be not in
contradiction with it; but conform to the standards that the law prescribes ... " 47

An even more explicit formulation of the controlling principle comes from the pen of the then
Justice, now Chief Justice, Concepcion: "Lastly, the legality of Circular No. 21 is assailed upon
the ground that the grant of authority to issue the same constitutes an undue delegation of
legislative power. It is true that, under our system of government, said power may not be
delegated except to local governments. However, one thing is to delegate the power to
determine what the law shall be, and another thing to delegate the authority to fix the details in
the execution of enforcement of a policy set out in the law itself. Briefly stated, the rule is that
the delegated powers fall under the second category, if the law authorizing the, delegation
furnishes a reasonable standard which "sufficiently marks the field within which the
Administrator is to act so that it may be known whether he has kept within it in compliance with
the legislative will." (Yakus vs. United States, 88 L. ed.
848) ... It should be noted, furthermore, that these powers must be construed and exercised in
relation to the objectives of the law creating the Central Bank, which are, among others, "to
maintain monetary stability in the Philippines," and "to promote a rising level of production,
employment and real income in the Philippines." (Section 2, Rep. Act No. 265). These
standards are sufficiently concrete and definite to vest in the delegated authority, the character
of administrative details in the enforcement of the law and to place the grant said authority
beyond the category of a delegation of legislative powers ... " 48

It bears repeating that the Reflector Law construed together with the Land Transportation Code.
Republic Act No. 4136, of which it is an amendment, leaves no doubt as to the stress and
emphasis on public safety which is the prime consideration in statutes of this character. There is
likewise a categorical affirmation Of the power of petitioner as Land Transportation
Commissioner to promulgate rules and regulations to give life to and translate into actuality such
fundamental purpose. His power is clear. There has been no abuse. His Administrative Order
No. 2 can easily survive the attack, far-from-formidable, launched against it by respondent Galo.

WHEREFORE, the writs of certiorari and prohibition prayed for are granted, the orders of May
28, 1970 of respondent Judge for the issuance of a writ of preliminary injunction, the writ of
preliminary injunction of June 1, 1970 and his order of June 9, 1970 denying reconsideration are
annulled and set aside. Respondent Judge is likewise directed to dismiss the petition for
certiorari and prohibition filed by respondent Teddy C. Galo, there being no cause of action as
the Reflector Law and Administrative Order No. 2 of petitioner have not been shown to be
tainted by invalidity. Without pronouncement as to costs.
 EN BANC

G.R. No. L-58184 October 30, 1981

FREE TELEPHONE WORKERS UNION, petitioner,

vs.
THE HONORABLE MINISTER OF LABOR AND EMPLOYMENT, THE NATIONAL LABOR
RELATIONS COMMISSION, and THE PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, respondents.

FERNANDO, C.J.:

The constitutionality of the amendment to the Article of the Labor Code regarding strikes
"affecting the national interest" 1 is assailed in this petition which partakes of the nature of a
prohibition proceeding filed by the Free Telephone Workers Union. As amended, the Article now
reads: "In labor disputes causing or likely to cause strikes or lockouts adversely affecting the
national interest, such as may occur in but not limited to public utilities, companies engaged in
the generation or distribution of energy, banks, hospitals, and those within export processing
zones, the Minister of Labor and Employment may assume jurisdiction over the dispute and
decide it or certify the same to the Commission for compulsory arbitration. Such assumption or
certification shall have the effect of automatically enjoining the intended or impending strike or
lockout. If one has already taken place at the time of assumption or certification, all striking or
locked out employees shall immediately return to work and the employers shall immediately
resume operations and readmit all workers under the same terms and conditions prevailing
before the strike or lockout. The Minister may seek the assistance of law enforcement agencies
to ensure compliance with this provision as well as with such orders as he may issue to enforce
the same." 2 It is the submission of petitioner labor union that "Batas Pambansa Blg. 130 in so
far as it amends article 264 of the Labor Code delegating to the Honorable Minister of Labor and
Employment the power and discretion to assume jurisdiction and/or certify strikes for
compulsory arbitration to the National Labor Relations Commission, and in effect make or
unmake the law on free collective bargaining, is an undue delegation of legislative
powers. 3 There is likewise the assertion that such conferment of authority "may also ran (sic)
contrary to the assurance of the State to the workers' right to self-organization and collective
bargaining. 4

On the CRUCIAL ISSUE PRESENTED; THE Court holds that petitioner was not able to make
out a case of an undue delegation of legislative power. There could be, however, an
unconstitutional application. For while the Constitution allows compulsory arbitration, it must be
stressed that the exercise of such competence cannot ignore the basic fundamental principle
and state policy that the state should afford protection to labor. 5 Whenever, therefore, it is
resorted to in labor disputes causing or likely to cause strikes or lockouts affecting national
interest, the State still is required to "assure the rights of workers to self-organization, collective
bargaining, security of tenure, and just and humane conditions of work. 6 At this stage of the
litigation, however, in the absence of factual determination by the Ministry of Labor and the
National Labor Relations Commission, this Court is not in a position to rule on whether or not
there is an unconstitutional application. There was not even a categorical assertion to that effect
by petitioner's counsel which was indicative of the care in his choice of words. He only assumed
that the conferment of such authority may run counter to the right of the workers to self-
organization and collective bargaining. The petition then cannot prosper.

The facts alleged in the petition relevant for the purpose of determining whether or not there is
an undue delegation of legislative power do not sustain the claim of petitioner union. On
September 14, 1981, there was a notice of strike with the Ministry of Labor for unfair labor
practices stating the following grounds " 1) Unilateral and arbitrary implementation of a Code of
Conduct, a copy of which is attached, to the detriment of the interest of our members; 2) Illegal
terminations and suspensions of our officers and members as a result of the implementation of
said Code of Conduct; and 3) Unconfirmation (sic) of call sick leaves and its automatic
treatment as Absence Without Official Leave of Absence (AWOL) with corresponding
suspensions, in violation of our Collective Bargaining Agreement." 7 After which came, on
September 15, 1981, the notification to the Ministry that there was compliance with the two-
thirds strike vote and other formal requirements of the law and Implementing Rules. 8 Several
conciliation meetings called by the Ministry followed, with petitioner manifesting its willingness to
have a revised Code of Conduct that would be fair to all concerned but with a plea that in the
meanwhile the Code of Conduct being imposed be suspended a position that failed to meet the
approval of private respondent. Subsequently, respondent, 9 on September 25, 1981, certified
the labor dispute to the National Labor Relations Commission for compulsory arbitration and
enjoined any strike at the private respondent's establishment. 10 The labor dispute was set for
hearing by respondent National Labor Relations Commission on September 28,
1981. 11 There was in the main an admission of the above relevant facts by public respondents.
Private respondent, following the lead of petitioner labor union, explained its side on the
controversy regarding the Code of Conduct, the provisions of which as alleged in the petition
were quite harsh, resulting in what it deemed indefinite preventive suspension apparently the
principal cause of the labor dispute. At this stage, as mentioned, it would be premature to
discuss the merits, or lack of it, of such claim, the matter being properly for the Ministry of Labor
to determine.

The very next day after the filing of the petition, to be exact on September 29, 1981, this Court
issued the following resolution: "Considering the allegations contained, the issues raised and
the arguments adduced in the petition for certiorari with prayer for a restraining order, the Court
Resolved to (a) require the respondents to file an [answer], not a motion to dismiss, on or before
Wednesday, October 7, 1981; and (b) [Set] this case for hearing on Thursday, October 8, 1981
at 11:00 o'clock in the morning. 12 After the parties were duly heard, Solicitor General Estelito P.
Mendoza 13 appearing for the public respondents, the case was considered ripe for decision. 14

To repeat, while the unconstitutionality of the amendatory act has not been demonstrated, there
is no ruling on the question of unconstitutional application, especially so as to any alleged
infringement in the exercise of the power of compulsory arbitration of the specific modes
provided in the Constitution to assure compliance with the constitutional mandate to "afford
protection to labor" being at this stage premature.

1. The allegation that there is undue delegation of legislative powers cannot stand the test of
scrutiny. The power which he would deny the Minister of Labor by virtue of such principle is for
petitioner labor union within the competence of the President, who in its opinion can best
determine national interests, but only when a strike is in progress. 15 Such admission is qualified
by the assumption that the President "can make law," " an assertion which need not be passed
upon in this petition.'What possesses significance for the purpose of this litigation is that it is the
President who "Shall have control of the ministries. 16 It may happen, therefore, that a single
person may occupy a dual position of Minister and Assemblyman. To the extent, however, that
what is involved is the execution or enforcement of legislation, the Minister is an official of the
executive branch of the government. The adoption of certain aspects of a parliamentary system
in the amended Constitution does not alter its essentially presidential character. Article VII on
the presidency starts with this provision: "The President shall be the head of state and chief
executive of the Republic of the Philippines. 17 Its last section is an even more emphatic
affirmation that it is a presidential system that obtains in our government. Thus: "All powers
vested in the President of the Philippines under the 1935 Constitution and the laws of the land
which are not herein provided for or conferred upon any official shall be deemed and are hereby
vested in the President unless the Batasang Pambansa provides otherwise. 18 There is a
provision, of course, on the Prime Minister, but the Constitution is explicit that while he shall be
the head of the Cabinet, it is the President who nominates him from among the members of the
Batasang Pambansa, thereafter being "elected by a majority of all the members thereof. 19 He is
primarily, therefore, a Presidential choice. He need not even come from its elected members.
He is responsible, along with the Cabinet, to the Batasang Pambansa for the program of
government but as "approved by the
President. 20 His term of office as Prime Minister "shall commence from the date of his election
by the Batasang Pambansa and shall end on the date that the nomination of his successor is
submitted by the President to the Batasang Pambansa. Any other member of the Cabinet or the
Executive Committee may be removed at the discretion of the President. 21 Even the duration of
his term then depends on the Presidential pleasure, not on legislative approval or lack of it.
During his incumbency, he exercises supervision over all ministries, 22 a recognition of the
important role he plays in the implementation of the policy of the government, the legislation
duly enacted in pursuance thereof, and the decrees and orders of the President. To the Prime
Minister can thus be delegated the performance of the administrative functions of the President,
who can then devote more time and energy in the fulfillment of his exacting role as the national
leader. 23 As the only one whose constituency is national it is the President who, by virtue of his
election by the entire electorate, has an indisputable claim to speak for the country as a whole.
Moreover, it is he who is explicitly granted the greater power of control of such ministries. He
continues to be the Executive, the amplitude and scope of the functions entrusted to him in the
formulation of policy and its execution leading to the apt observation by Laski that there is not
one aspect of which that does not affect the lives of all. The Prime Minister can be of valuable
assistance indeed to the President in the discharge of his awesome responsibility, but it is the
latter who is vested with powers, aptly characterized by Justice Laurel in Planas v. Gil 24 as
"broad and extraordinary [being] expected to govern with a firm and steady hand without
vexation or embarrassing interference and much less dictation from any source. 25 It may be
said that Justice Laurel was referring to his powers under the 1935 Constitution. It suffices to
refer anew to the last section of the article of the present Constitution on the presidency to the
effect that all powers vested in the President of the Philippines under the 1935 Constitution
remain with him. It cannot be emphasized too strongly that under the 1935 Constitution. "The
Executive power shall be vested in the President of the Philippines. 26

2. A later decision, Villena v. Secretary of Interior 27 greater relevance to this case. The opinion
of Justice Laurel, again the ponente, made clear that under the presidential system, "all
executive and administrative organizations are adjuncts of the Executive Department, the heads
of the various executive departments are assistants and agents of the Chief Executive, and,
except in cases where the Chief Executive is required by the Constitution or the law to act in
person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief Executive. 28 At the time of the adoption of
the present Constitution on January 17, 1973, this Court had cited with approval the above
ruling of Villena in twelve cases. 29 It is particularly noteworthy that the first decision promulgated
under the present Constitution reiterating the above doctrine is Philippine American
Management Co. v. Philippine American Management Employees Association. 30 For the
question therein involved, as in this case, is the statutory grant of authority to the then Secretary
of Labor, now Minister of Labor, by the Minimum Wage Law to refer to the then existing Court of
Industrial Relations for arbitration the dispute that led to a strike. It is indisputable, according to
the opinion, that in the very petition, the Secretary of Labor on January 6, 1972, pursuant to the
Minimum Wage Law, "endorsed the controversy on the precise question of whether or not
petitioner Philippine American Management Company was complying with its mandatory terms.
What was done by him, as a department head, in the regular course of business and
conformably to a statutory provision is, according to settled jurisprudence that dates back to an
authoritative pronouncement by Justice Laurel in 1939 in Villena v. Secretary of the Interior,
presumptively the act of the President, who is the only dignitary who could, paraphrasing the
language of the decision, disapprove or reprobate it. What other response could be legitimately
expected from respondent Court then? It could not just simply fold its hands and refuse to pass
on the dispute. 31 The Villena doctrine was stressed even more in denying a motion for
reconsideration by a more extensive citation from the ponencia of Justice Laurel: "Without
minimizing the importance of the heads of the various departments, their personality is in reality
but the projection of that of the President. Stated otherwise, and as forcibly characterized by
Chief Justice Taft of the Supreme Court of the United States, "each head of a department is,
and must be, the President's alter ego in the matters of that department where the President is
required by law to exercise authority." ... Secretaries of departments, of course, exercise certain
powers under the law but the law cannot impair or in any way affect the constitutional power of
control and direction of the President. As a matter of executive policy, they may be granted
departmental autonomy as to certain matters but this is by mere concession of the executive, in
the absence of valid legislation in the particular field. If the President, then, is the authority in the
Executive Department, he assumes the corresponding responsibility. The head of a department
is a man of his confidence; he control and directs his acts; he appoints him and can remove him
at pleasure; he is the executive, not any of his secretaries. It is therefore logical that he, the
President, should be answerable for the acts of administration of the entire Executive
Department before his own conscience no less than before that undefined power of public
opinion which, in the language of Daniel Webster, is the last repository of popular
government. 32 So it should be in this case.

3. Even on the assumption, indulged in solely because of the claim earnestly and vigorously
pressed by counsel for petitioner, that the authority conferred to the Minister of Labor partakes
of a legislative character, still no case of an unlawful delegation of such power may be
discerned. That is the teaching from Edu v. Ericta 33 Thus: "What cannot be delegated is the
authority under the Constitution to make laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions when it leaves the hands of the
legislature, To determine whether or riot there is an undue delegation of legislative power, the
inquiry must be directed to the scope and definiteness of the measure enacted. The legislature
does not abdicate its functions when it describes what job must be done, who is to do it, and
what is the scope of his authority. For a complex economy, that may indeed be the only way in
which the legislative process can go forward. A distinction has rightfully been made between
delegation of power to make the laws which necessarily involves a discretion as to what it shall
be, which constitutionally may not be done, and delegation of authority or discretion as to its
execution to be exercised under and in pursuance of the law, to which no valid objection can be
made. The Constitution is thus not to be regarded as denying the legislature the necessary
resources of flexibility and practicability. To avoid the taint of unlawful delegation, there must be
a standard, which implies at the very least that the legislature itself determines matters principle
and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard
to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and
specifies the public agency to apply it. It indicates the circumstances under which the legislative
command is to be effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of the above
guidelines promulgate supplemental rules and regulations. The standard may be either express
or implied. If the former, the non-delegation objection is easily met. The standard though does
not have to be spelled out specifically. It could be implied from the policy and purpose of the act
considered as a whole. ... This is to adhere to the recognition given expression by Justice Laurel
in a decision [Pangasinan Transportation v. Public Service Commission] announced not-too-
long after the Constitution came into force and effect that the principle of non-delegation 'has
been made to adapt itself to the complexities of modem governments giving rise to the adoption,
within certain limits, of the principle of "subordinate legislation" not only in the United States and
England but in practically all modern governments He continued: 'Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly growing tendency toward the
delegation of greater powers by the legislature and toward the approval of the practice by the
courts.' Consistency with the conceptual approach requires the reminder that what is delegated
is authority non-legislative in character, the completeness of the statute when it leaves the
hands of Congress being assumed. Our later decisions speak to the same effect. Thus from
Justice J.B.L. Reyes in People v. Exconde; 'It is well established in this jurisdiction that, while
the making of laws is a non-delegable activity that corresponds exclusively to Congress,
nevertheless the latter may constitutionally delegate authority to promulgate rules and
regulations to implement a given legislation and effectuate its policies, for the reason that the
legislature often finds it impracticable (if not impossible) to anticipate and provide for the
multifarious and complex situations that may be met in carrying the law into effect. All that is
required is that the regulation should be germane to the objects and purposes of the law; that
the regulation be not in contradiction with it; but conform to the standards that the law
prescribes.' 34 Batas Pambansa Blg. 130 cannot be any clearer, the coverage being limited to
"strikes or lockouts adversely affecting the national interest."

4. The strict rule on non-delegation was enunciated by Justice Laurel in People v.

Vera, 35 Which declared unconstitutional the then Probation Act. 36 Such an approach,
conceded, by some constitutionalists to be both scholarly and erudite nonetheless aroused
apprehension for being too rigid and inflexible. While no doubt appropriate in that particular
case, the institution of a new mode of treating offenders, it may pose difficulty for social and
economic legislation needed by the times. Even prior to the above-cited Pangasinan
Transportation decision, Justice Laurel himself in an earlier decision, People v. Rosenthal in
1939, promulgated less than two years after Vera, pointed out that such doctrine of non-
delegation "has been made to adopt itself to the complexities of modern governments, giving
rise to the adoption, within certain limits, of the principle of 'subordinate legislation' not only in
the United States and England but in practically all modern governments. The difficulty lies in
the fixing of the limit and extent of the authority. While courts have undertaken to lay down
general principles, the safest is to decide each case according to its peculiar environment,
having in mind the wholesome legislative purpose intended to be achieved. 37 After which, in
came the even more explicit formulation in Pangasinan Transportation appearing in the quoted
excerpt from Edu v. Ericta. There is no question therefore that there is a marked drift in the
direction of a more liberal approach. It is partly in recognition of the ever increasing needs for
the type of legislation allowing rule-making in accordance with standards, explicit or implicit,
discernible from a perusal of the entire enactment that in Agricultural Credit and Cooperative
Financing Administration v. Confederation of Unions in Government Corporations and
Offices" 38 the then Justice, now the retired Chief Justice and presently Speaker, Makalintal had
occasion to refer to "the growing complexities of society" as well as "the increasing social
challenges of the times. 39 It would be self-defeating in the extreme if the legislation intended to
cope with the grave social and economic problems of the present and foreseeable future would
founder on the rock of an unduly restrictive and decidedly unrealistic meaning to be affixed to
the doctrine of non-delegation. Fortunately with the retention in the amended Constitution of
some features of the 1973 Constitution as originally adopted leading to an appreciable measure
of concord and harmony between the policy-making branches of the government, executive and
legislative, the objection on the grounds of non- delegation would be even less persuasive. It is
worth repeating that the Prime Minister, while the choice of the President, must have the
approval of all members of the Batasang Pambansa. 40 At least the majority of the cabinet
members, the Ministers being appointed by the President, if heads of ministries, shall come
from its regional representatives. 41 So, also, while the Prime Minister and the Cabinet are
responsible to the Batasang Pambansa for the program of government, it must be one
"approved by the President. 42 While conceptually, there still exists a distinction between the
enactment of legislation and its execution, between formulation and implementation, the
fundamental principle of separation of powers of which non-delegation is a logical corollary
becomes even more flexible and malleable. Even in the case of the United States, with its
adherence to the Madisonian concept of separation of powers, President Kennedy could state
that its Constitution did not make "the Presidency and Congress rivals for power but partners for
progress [with the two branches] being trustees for the people, custodians of their
heritage. 43 With the closer relationship provided for by the amended Constitution in our case,
there is likely to be even more promptitude and dispatch in framing the policies and thereafter
unity and vigor in their execution. A rigid application of the non-delegation doctrine, therefore,
would be an obstacle to national efforts at development and progress. There is accordingly
more receptivity to laws leaving to administrative and executive agencies the adoption of such
means as may be necessary to effectuate a valid legislative purpose. It is worth noting that a
highly-respected legal scholar, Professor Jaffe as early as 1947, could speak of delegation as
the "dynamo of modern government. 44 He then went on to state that "the occasions for
delegating power to administrative offices [could be] compassed by a single
generalization. 45 Thus: "Power should be delegated where there is agreement that a task must
be performed and it cannot be effectively performed by the legislature without the assistance of
a delegate or without an expenditure of time so great as to lead to the neglect of equally
important business. Delegation is most commonly indicated where the relations to be regulated
are highly technical or where their regulation requires a course of continuous decision. 46 His
perceptive study could rightfully conclude that even in a strictly presidential system like that of
the United States, the doctrine of non-delegation reflects the American "political philosophy that
insofar as possible issues be settled [by legislative bodies], an essentially restrictive approach"
may ignore "deep currents of social force. 47 In plainer terms, and as applied to the Philippines
under the amended Constitution with the close ties that bind the executive and legislative
departments, certain features of parliamentarism having been retained, it may be a deterrent
factor to much needed legislation. The spectre of the non-delegation concept need not haunt,
therefore, party caucuses, cabinet sessions or legislative chambers.

5. By way of summary, this Court holds that Batas Pambansa Blg. 130 insofar as it empowers
the Minister of Labor to assume jurisdiction over labor disputes causing or likely to cause strikes
or lockouts adversely affecting the national interest and thereafter decide it or certify the same
the National Labor Relations Commission is not on its face unconstitutional for being violative of
the doctrine of non-delegation of legislative power. To repeat, there is no ruling on the question
of whether or not it has been unconstitutionally applied in this case, for being repugnant to the
regime of self-organization and free collective bargaining, as on the facts alleged, disputed by
private respondent, the matter is not ripe for judicial determination. It must be stressed anew,
however, that the power of compulsory arbitration, while allowable under the Constitution and
quite understandable in labor disputes affected with a national interest, to be free from the taint
of unconstitutionality, must be exercised in accordance with the constitutional mandate of
protection to labor. The arbiter then is called upon to take due care that in the decision to be
reached, there is no violation of "the rights of workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work. 48 It is of course manifest that there
is such unconstitutional application if a law "fair on its face and impartial in appearance (is)
applied and administered by public authority with an evil eye and an unequal hand. 49 It does not
even have to go that far. An instance of unconstitutional application would be discernible if what
is ordained by the fundamental law, the protection of labor, is ignored or disregarded.

WHEREFORE, the petition is dismissed for lack of merit. During the pendency of the
compulsory arbitration proceedings, both petitioner labor union and private respondent are
enjoined to good faith compliance with the provisions of Batas Pambansa Blg. 130. No costs.
 EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,

vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the
power of the incumbent President of the Philippines to propose amendments to the present
Constitution in the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991
calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays")
to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the
powers of such replacement, the period of its existence, the length of the period for tile exercise
by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring
the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of
votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of
October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below.2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033,
stating the questions to be submitted to the people in the referendum-plebiscite on October 16,
1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the
convening of the National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a legislative body, which will be
submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following
amendments to the Constitution? For the purpose of the second question, the referendum shall
have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the
Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa.
Members of the interim Batasang Pambansa which shall not be more than 120, unless
otherwise provided by law, shall include the incumbent President of the Philippines,
representatives elected from the different regions of the nation, those who shall not be less than
eighteen years of age elected by their respective sectors, and those chosen by the incumbent
President from the members of the Cabinet. Regional representatives shall be apportioned
among the regions in accordance with the number of their respective inhabitants and on the
basis of a uniform and progressive ratio while the sectors shall be determined by law. The
number of representatives from each region or sector and the, manner of their election shall be
prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and
selection of the members, convene the interim Batasang Pambansa and preside over its
sessions until the Speaker shall have been elected. The incumbent President of the Philippines
shall be the Prime Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its functions and likewise he
shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty
five. Constitution and the powers vested in the President and the Prime Minister under this
Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions,
and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and
shall be subject only to such disqualifications as the President (Prime Minister) may prescribe.
The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many
Deputy Prime Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall
have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency
or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on
Elections may be called at any time the government deems it necessary to ascertain the will of
the people regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall
continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that
they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the
October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and conducting the Referendum Plebiscite on October
16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it
directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-
Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional
or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections, The Solicitor General principally maintains that petitioners have no standing to sue;
the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the
transition period, only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as
L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to, or revision of the Constitution
during the transition period is expressly conferred on the interim National Assembly under
Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by
RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L-
44714, to restrain the implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for deliberation renders
the plebiscite a nullity; to lift Martial Law, the President need not consult the people via
referendum; and allowing 15-.year olds to vote would amount to an amendment of the
Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of
age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and
Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature
Presidential Decrees are of such nature-may be contested by one who will sustain a direct
injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the 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 breadth of Presidential Decree No. 991 carries all
appropriation of Five Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure
of these amounts of public money sufficiently clothes them with that personality to litigate the
validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this
Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside
the domain of judicial review. We disagree. The amending process both as to proposal and
ratification, raises a judicial question. 8 This is especially true in cases where the power of the
Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under
the terms of the 1973 Constitution, the power to propose amendments o the constitution resides
in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After
that period, and the regular National Assembly in its active session, the power to propose
amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1,
pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather
than calling the National Assembly to constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and submitted the proposed amendments
thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity regularity of the procedure for amendments, written in lambent
words in the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have
the force and effect of legislation are assailed as invalid, thus the issue of the validity of said
Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2
(2), Article X of the new Constitution provides: "All cases involving the constitutionality of a
treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en
banc and no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the Constitution itself The amending,
like all other powers organized in the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act, that
matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom
of the act of the incumbent President in proposing amendments to the Constitution, but his
constitutional authority to perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to propose amendments is
therefore a downright justiciable question. Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the Constitution provides how it may be
amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure
followed or the authority assumed was valid or not.10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability,
that the question of the President's authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people ultimately lie in the judgment of
the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the amending process when they
ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has
been followed or not is the proper subject of inquiry, not by the people themselves of course
who exercise no power of judicial but by the Supreme Court in whom the people themselves
vested that power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the
preference of the Court's majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the
Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic
of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s
therefore "is a political one, was rejected and the Court unanimously considered the issue as
justiciable in nature. Subsequently in the Ratification Cases12 involving the issue of whether or
not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino
people of the constitution proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the
Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the
majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to
be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of
a political nature, and We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus
cases, questioning Our authority to determine the constitutional sufficiency of the factual bases
of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August
21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro
vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in
Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito,
urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion
continued: "The reasons adduced in support thereof are, however, substantially the same as
those given in support on the political question theory advanced in said habeas corpus and
plebiscite cases, which were carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which
gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention. (2) The National Assembly may, by a
vote of two-thirds of all its Members, call a constitutional convention or, by a
majority vote of all its Members, submit the question of calling such a convention
to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held not
later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose amendments
to this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period
of normalcy and period of transition. In times of normally, the amending process may be initiated
by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its
members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members
of the National Assembly. However the calling of a Constitutional Convention may be submitted
to the electorate in an election voted upon by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be proposed by a majority vote of all the
Members of the National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is
vested with that prerogative of discretion as to when he shall initially convene the interim
National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The
Constitutional Convention intended to leave to the President the determination of the time when
he shall initially convene the interim National Assembly, consistent with the prevailing conditions
of peace and order in the country." Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention
voted on the Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the discretion as to when he could convene the interim National
Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the
proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The
President's decision to defer the convening of the interim National Assembly soon found support
from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of
the 1973 Constitution was submitted, the people voted against the convening of the interim
National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays")
reiterated their sovereign will to withhold the convening of the interim National Assembly. Again,
in the referendum of February 27, 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the members of
Congress and delegates of the Constitutional Convention, who were deemed automatically
members of the I interim National Assembly, were against its inclusion since in that referendum
of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of
amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not
legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power
bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for
in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the National Assembly). While ordinarily it is the business of the
legislating body to legislate for the nation by virtue of constitutional conferment amending of the
Constitution is not legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character'. The distinction,
however, is one of policy, not of law.17 Such being the case, approval of the President of any
proposed amendment is a misnomer 18 The prerogative of the President to approve or
disapprove applies only to the ordinary cases of legislation. The President has nothing to do
with proposition or adoption of amendments to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis

government today are more or less concentrated in the President. 20 According to Rossiter,
"(t)he concentration of government power in a democracy faced by an emergency is a
corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most
free states it has generally been regarded as imperative that the total power of the government
be parceled out among three mutually independent branches executive, legislature, and
judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise
any two or more types of power, and certainly a total disregard of the separation of powers is,
as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the
separation of powers forms a distinct obstruction to arbitrary governmental action. By this same
token, in abnormal times it may form an insurmountable barrier to a decisive emergency action
in behalf of the state and its independent existence. There are moments in the life of any
government when all powers must work together in unanimity of purpose and action, even if this
means the temporary union of executive, legislative, and judicial power in the hands of one
man. The more complete the separation of powers in a constitutional system, the more difficult
and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison
of the crisis potentialities of the cabinet and presidential systems of government. In the former
the all-important harmony of legislature and executive is taken for granted; in the latter it is
neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship. The power of the state in crisis
must not only be concentrated and expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in
its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not provided. 22 The rationale behind such
broad emergency powers of the Executive is the release of the government from "the paralysis
of constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid
at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the
Transitory Provisions, thus:23

The incumbent President of the Philippines shall initially convene the interim
National Assembly and shall preside over its sessions until the interim Speaker
shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
until the calls upon the interim National Assembly to elect the interim President
and the interim Prime Minister, who shall then exercise their respective powers
vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or

done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking
powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing
Rossiter, this is an extremely important factor in any constitutional dictatorship which extends
over a period of time. The separation of executive and legislature ordained in the Constitution
presents a distinct obstruction to efficient crisis government. The steady increase in executive
power is not too much a cause for as the steady increase in the magnitude and complexity of
the problems the President has been called upon by the Filipino people to solve in their behalf,
which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis
greater than war. In short, while conventional constitutional law just confines the President's
power as Commander-in-Chief to the direction of the operation of the national forces, yet the
facts of our political, social, and economic disturbances had convincingly shown that in meeting
the same, indefinite power should be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim
National Assembly during the transition period. However, the initial convening of that Assembly
is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of
that judgment, the President opted to defer convening of that body in utter recognition of the
people's preference. Likewise, in the period of transition, the power to propose amendments to
the Constitution lies in the interim National Assembly upon special call by the President (See. 15
of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President
decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim
Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the interim Assembly,
there is no reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature. Rather, with the interim National
Assembly not convened and only the Presidency and the Supreme Court in operation, the urges
of absolute necessity render it imperative upon the President to act as agent for and in behalf of
the people to propose amendments to the Constitution. Parenthetically, by its very constitution,
the Supreme Court possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to undertake the
amending process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government
"to end the crisis and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the President now, are mere agents of
the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973
and February 1975, the people had already rejected the calling of the interim National
Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay,
representing 42,000 barangays, about the same number of Kabataang Barangay organizations,
Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed
the President that the prevailing sentiment of the people is for the abolition of the interim
National Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle
the issues of martial law, the interim Assembly, its replacement, the period of its existence, the
length of the period for the exercise by the President of its present powers in a referendum to be
held on October 16 .28 The Batasang Bayan (legislative council) created under Presidential
Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet
rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng
mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on
October 16, the previously quoted proposed amendments to the Constitution, including the
issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the
President the submission of the proposed amendments to the people on October 16. All the
foregoing led the President to initiate the proposal of amendments to the Constitution and the
subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National Referendum-Plebiscite on
October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all
government authority emanates from them .30 In its fourth meaning, Savigny would treat people
as "that particular organized assembly of individuals in which, according to the Constitution, the
highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may
thus write into the Constitution their convictions on any subject they choose in the absence of
express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The necessities of orderly government," wrote
Rottschaefer, "do not require that one generation should be permitted to permanently fetter all
future generations." A constitution is based, therefore, upon a self-limiting decision of the people
when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and
the question of martial law in a referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President. Indeed, it may well be said that
the amending process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial
law to be continued? - is a referendum question, wherein the 15-year olds may participate. This
was prompted by the desire of the Government to reach the larger mas of the people so that
their true pulse may be felt to guide the President in pursuing his program for a New Order. For
the succeeding question on the proposed amendments, only those of voting age of 18 years
may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the
new Constitution. 36 On this second question, it would only be the votes of those 18 years old
and above which will have valid bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the plebiscite question does not
infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a
given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes for every barangay center, one
containing the ballots of voters fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen
years and above contained in another ballot box. And, the results of the referendum-plebiscite
shall be separately prepared for the age groupings, i.e., ballots contained in each of the two
boxes.38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is

merely consultative in character. It is simply a means of assessing public reaction to the given
issues submitted to the people foe their consideration, the calling of which is derived from or
within the totality of the executive power of the President.39 It is participated in by all citizens
from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex-
convicts .40 A "plebiscite," on the other hand, involves the constituent act of those "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 Literacy, property or any other substantive
requirement is not imposed. It is generally associated with the amending process of the
Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in
main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on
certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite
on October 16 recognizes all the embracing freedoms of expression and assembly The
President himself had announced that he would not countenance any suppression of dissenting
views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to
the public forums, voicing out loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which is already a settled
matter.43 Even government employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the referendum-plebiscite
issues.44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free
debates or discussions on the referendum-plebiscite issues. The questions are not new. They
are the issues of the day. The people have been living with them since the proclamation of
martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial
law. That notwithstanding, the contested brief period for discussion is not without counterparts in
previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case,
recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive
issues of the Official Gazette of the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to
append as ordinance the complicated Tydings-Kocialskowski was published in only three
consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com.
Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the
reelection of the President and Vice President, and the creation of the Commission on
Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting
the economy as well as the independence of the Republic was publicized in three consecutive
issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)."45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific
date when the plebiscite shall be held, but simply states that it "shall be held not later than three
months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United
States Supreme court held that this matter of submission involves "an appraisal of a great
variety of relevant conditions, political, social and economic," which "are essentially political and
not justiciable." The constituent body or in the instant cases, the President, may fix the time
within which the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that
they are not to be widely separated in time; second, it is only when there is deemed to be a
necessity therefor that amendments are to be proposed, the reasonable implication being that
when proposed, they are to be considered and disposed of presently, and third, ratification is
but the expression of the approbation of the people, hence, it must be done
contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed
today has relation to the sentiment and the felt needs of today, and that, if not ratified early while
that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again
to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution
as well as set up the required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable,
while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the
view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices
Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably
to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically
dissents from the proposition that there is concentration of powers in the Executive during
periods of crisis, thus raising serious doubts as to the power of the President to propose
amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to
his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21
SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the
President's lack of authority to exercise the constituent power to propose the amendments, etc.,
as above stated, there is no fair and proper submission with sufficient information and time to
assure intelligent consent or rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion
Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his
separate opinion, Associate Justice Fernando concurs in the result. Associate Justices
Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately executory.

SO ORDERED.
 EN BANC

G.R. No. L-3820             July 18, 1950

JEAN L. ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO BALAGTAS,
Director of Prisons, respondents.

J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.

Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong, Lorenzo Tañada, and
Vicente J. Francisco for respondents.

OZAETA, J.:

This is an original petition for habeas corpus to relieve the petitioner from his confinement in the
New Bilibid Prison to which he has been committed by virtue of a resolution adopted by the
Senate on May 15, 1950, which reads as follows:

Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions related to the said amount; Now,
therefore, be it.

Resolved, that for his refusal to reveal the name of the person to whom he gave the
P440,000 Jean L. Arnault be committed to the custody of the Sergeant-at-Arms and
imprisoned in the New Bilibid Prison, Muntinlupa, Rizal, until discharged by further order
of the Senate or by the special committee created by Senate Resolution No. 8, such
discharge to be ordered when he shall have purged the contempt by revealing to the
Senate or to the said special committee the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions in connection therewith.

The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be
briefly stated as follows:

In the latter part of October, 1949, the Philippine Government, through the Rural Progress
Administration, bought two estates known as Buenavista and Tambobong for the sums of
P4,500,000 and P500,000, respectively. Of the first sum, P1,000,000 was paid to Ernest H.
Burt, a nonresident American, thru his attorney-in-fact in the Philippines, the Associated
Estates, Inc., represented by Jean L. Arnault, for alleged interest of the said Burt in the
Buenavista Estate. The second sum of P500,000 was all paid to the same Ernest H. Burt
through his other attorney-in-fact, the North Manila Development Co., Inc., also represented by
Jean L. Arnault, for the alleged interest of the said Burt in the Tambobong Estate.

The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine
Government held a 25-year lease contract on said estate, with an option to purchase it for
P3,000,000 within the same period of 25 years counted from January 1, 1939. The occupation
Republic of the Philippines purported to exercise that option by tendering to the owner the sum
of P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944, together with
the accrued rentals amounting to P3224,000. Since 1939 the Government has remained in
possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to
Ernest H. Burt, who made a down payment of P10,000 only and agreed to pay P5000,000
within one year and the remainder in annual installments of P500,000 each, with the stipulation
that failure on his part to make any of said payments would cause the forfeiture of his down
payment of P10,000 and would entitle the Hospital to rescind to sale to him. Aside from the
down payment of P10,000, Burt has made no other payment on account of the purchase price
of said estate.

The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14,
1946, the Philippine Trust Company sold estate for the sum of P1,200,000 to Ernest H. Burt,
who paid P10,000 down and promise to pay P90,000 within nine months and the balance of
P1,100,000 in ten successive installments of P110,000 each. The nine-month period within
which to pay the first installment of P90,000 expired on February 14, 1947, without Burt's having
paid the said or any other amount then or afterwards. On September 4, 1947, the Philippine
Trust Company sold, conveyed, and delivered the Tambobong Estate to the Rural Progress
Administration by an absolute deed of sale in consideration of the sum of P750,000. On
February 5, 1948, the Rural Progress Administration made, under article 1504 of the Civil Code,
a notarial demand upon Burt for the resolution and cancellation of his contract of purchase with
the Philippine Trust Company due to his failure to pay the installment of P90,000 within the
period of nine months. Subsequently the Court of First Instance of Rizal ordered the
cancellation of Burt's certificate of title and the issuance of a new one in the name of the Rural
Progress Administration, from which order he appealed to the Supreme Court.1

It was in the face of the antecedents sketched in the last three preceding paragraphs that the
Philippine Government, through the Secretary of Justice as Chairman of the Board of Directors
of the Rural Progress Administration and as Chairman of the Board of Directors of the Philippine
National Bank, from which the money was borrowed, accomplished the purchase of the two
estates in the latter part of October, 1949, as stated at the outset.

On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows:

RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE

BUENAVISTA AND THE TAMBOBONG ESTATES DEAL.

WHEREAS, it is reported that the Philippine government, through the Rural Progress
Administration, has bought the Buenavista and the Tambobong Estates for the
aggregate sum of five million pesos;

WHEREAS, it is reported that under the decision of the Supreme Court dated October
31, 1949, the Buenavista Estate could have been bought for three million pesos by virtue
of a contract entered into between the San Juan de Dios Hospital and Philippine
Government in 1939;

WHEREAS, it is even alleged that the Philippine Government did not have to purchase
the Buenavista Estate because the occupation government had made tender of payment
in the amount of three million pesos, Japanese currency, which fact is believed sufficient
to vest title of Ownership in the Republic of the Philippines pursuant to decisions of the
Supreme Court sustaining the validity of payments made in Japanese military notes
during the occupation;
 WHEREAS, it is reported that the Philippine Government did not have to pay a single
centavo for the Tambobong Estate as it was already practically owned by virtue of a
deed of sale from the Philippine Trust Company dated September 3, 194, for seven
hundred and fifty thousand pesos, and by virtue of the recission of the contract through
which Ernest H. Burt had an interest in the estate; Now, therefore, be it.

RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five
members to be appointed by the President of the Senate to investigate the Buenavista
and Tambobong Estate deals. It shall be the duty of the said Committee to determine
whether the said purchase was honest, valid, and proper and whether the price involved
in the deal was fair and just, the parties responsible therefor, and any other facts the
Committee may deem proper in the premises. Said Committee shall have the power to
conduct public hearings; issue subpoena or subpoena duces tecum to compel the
attendance of witnesses or the production of documents before it; and may require any
official or employee of any bureau, office, branch, subdivision, agency, or instrumentality
of the Government to assist or otherwise cooperate with the Special Committee in the
performance of its functions and duties. Said Committee shall submit its report of
findings and recommendations within two weeks from the adoption of this Resolution.

The special committee created by the above resolution called and examined various witnesses,
among the most important of whom was the herein petitioner, Jean L. Arnault. An intriguing
question which the committee sought to resolve was that involved in the apparent
unnecessariness and irregularity of the Government's paying to Burt the total sum of
P1,500,000 for his alleged interest of only P20,000 in the two estates, which he seemed to have
forfeited anyway long before October, 1949. The committee sought to determine who were
responsible for and who benefited from the transaction at the expense of the Government.

Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him
on the afternoon of October 29, 1949; that on the same date he opened a new account in the
name of Ernest H. Burt with the Philippine National Bank in which he deposited the two checks
aggregating P1,500,000; and that on the same occasion he draw on said account two checks;
one for P500,000, which he transferred to the account of the Associated Agencies, Inc., with the
Philippine National Bank, and another for P440,000 payable to cash, which he himself cashed.
It was the desire of the committee to determine the ultimate recipient of this sum of P440,000
that gave rise to the present case.

At first the petitioner claimed before the Committee:

Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the
disposition of funds, I take the position that the transactions were legal, that no laws
were being violated, and that all requisites had been complied with. Here also I acted in
a purely functional capacity of representative. I beg to be excused from making answer
which might later be used against me. I have been assured that it is my constitutional
right to refuse to incriminate myself, and I am certain that the Honorable Members of this
Committee, who, I understand, are lawyers, will see the justness of my position.

At as subsequent session of the committee (March 16) Senator De Vera, a member of the
committee, interrogated him as follows:
 Senator DE VERA. Now these transactions, according to your own typewritten
statement, were legal?

Mr. ARNAULT. I believe so.

Senator DE VERA. And the disposition of that fund involved, according to your own
statement, did not violate any law?

Mr. ARNAULT. I believe so.

xxx     xxx     xxx

Senator DE VERA. So that if the funds were disposed of in such a manner that no laws
were violated, how is it that when you were asked by the Committee to tell what steps
you took to have this money delivered to Burt, you refused to answer the questions,
saying that it would incriminate you?

Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with
other people.

xxx     xxx     xxx

Senator DE VERA. Are you afraid to state how the money was disposed of because you
would be incriminated, or you would be incriminating somebody?

Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money
that has been paid to me as a result of a legal transaction without having to account for
any use of it.

But when in the same session the chairman of the committee, Senator Sumulong, interrogated
the petitioner, the latter testified as follows:

The CHAIRMAN. The other check of P440,000 which you also made on October 29,
1949, is payable to cash; and upon cashing this P440,000 on October 29, 1949, what
did you do with that amount?

Mr. ARNAULT. I turned it over to a certain person.

The CHAIRMAN. The whole amount of P440,000?

Mr. ARNAULT. Yes.

The CHAIRMAN. Who was that certain person to whom you delivered these P440,000
which you cashed on October 29, 1949?

Mr. ARNAULT. I don't remember the name; he was a representative of Burt.

The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a
Filipino?
Mr. ARNAULT. I don't know.

The CHAIRMAN. You do not remember the name of that representative of Burt to whom
you delivered this big amount of P440,000?

Mr. ARNAULT. I am not sure; I do not remember the name.

The CHAIRMAN. That certain person who represented Burt to whom you delivered the
big amount on October 29, 1949, gave you a receipt for the amount?

Mr. ARNAULT. No.

The CHAIRMAN. Neither did you ask a receipt?

Mr. ARNAULT. I didn't ask.

The CHAIRMAN. And why did you give that certain person, representative of Burt, this
big amount of P440,000 which forms part of the P1-½ million paid to Burt?

Mr. ARNAULT. Because I have instructions to that effect.

The CHAIRMAN. Who gave you the instruction?

Mr. ARNAULT. Burt.

The CHAIRMAN. Where is the instruction; was that in writing?

Mr. ARNAULT. No.

The CHAIRMAN. By cable?

Mr. ARNAULT. No.

The CHAIRMAN. In what form did you receive that instruction?

Mr. ARNAULT. Verbal instruction.

The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these
P440,000 to a certain person whose name you do not like to reveal?

Mr. ARNAULT. I have instruction to comply with the request of the person.

The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal?

Mr. ARNAULT. Yes.

The CHAIRMAN. When was that instruction given to you by Burt?

Mr. ARNAULT. Long time ago.

The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was
still here in the Philippines?

Mr. ARNAULT. Yes.

The CHAIRMAN. But at that time Burt already knew that he would receive the money?

Mr. ARNAULT. No.

The CHAIRMAN. In what year was that when Burt while he was here in the Philippines
gave you the verbal instruction?

Mr. ARNAULT. In 1946.

The CHAIRMAN. And what has that certain person done for Burt to merit receiving these
P440,000?

Mr. ARNAULT. I absolutely do not know.

The CHAIRMAN. You do not know?

Mr. ARNAULT. I do not know.

The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that
certain person should receive these P440,000?

Mr. ARNAULT. He did not tell me.

The CHAIRMAN. And Burt also authorized you to give this big amount to that certain
person without receipt?

Mr. ARNAULT. He told me that a certain person would represent him and where could I
meet him.

The CHAIRMAN. Did Burt know already that certain person as early as 1946?

Mr. ARNAULT. I presume much before that.

The CHAIRMAN. Did that certain person have any intervention in the prosecution of the
two cases involving the Buenavista and Tambobong estates?

Mr. ARNAULT. Not that I know of.

The CHAIRMAN. Is that certain person related to any high government official?

Mr. ARNAULT. No, I do not know.

The CHAIRMAN. Why can you not tell us the name of that certain person?

Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.

The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949,
you knew already that person?

Mr. ARNAULT. Yes, I have seen him several times.

The CHAIRMAN. And the name of that certain person is a Filipino name?

Mr. ARNAULT. I would say Spanish name.

The CHAIRMAN. And how about his Christian name; is it also a Spanish name?

Mr. ARNAULT. I am not sure; I think the initial is J.

The CHAIRMAN. Did he have a middle name?

Mr. ARNAULT. I never knew it.

The CHAIRMAN. And how about his family name which according to your recollection is
Spanish; can you remember the first letter with which that family name begins?

Mr. ARNAULT. S, D or F.

The CHAIRMAN. And what was the last letter of the family name?

Mr. ARNAULT. I do not know.

The CHAIRMAN. Have you seen that person again after you have delivered this
P440,000?

Mr. ARNAULT. Yes.

The CHAIRMAN. Several times?

Mr. ARNAULT. Two or three times.

The CHAIRMAN. Here in Manila?

Mr. ARNAULT. Yes.

The CHAIRMAN. And in spite of the fact that you met that person two or three times, you
never were able to find out what was his name?

Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of
course, we have not done business. Lots of people in Manila know me, but they don't
 know my name, and I don't know them. They sa{ I am "chiflado" because I don't know
their names.

The CHAIRMAN. That certain person is a male or female?

Mr. ARNAULT. He is a male.

The CHAIRMAN. You are sure that he is a male at least?

Mr. ARNAULT. Let us say 38 or 40 years, more or less.

The CHAIRMAN. Can you give us, more or less, a description of that certain person?
What is his complexion: light, dark or light brown?

Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but smaller.
He walks very straight, with military bearing.

The CHAIRMAN. Do you know the residence of that certain person to whom you gave
the P440,000?

Mr. ARNAULT. No.

The CHAIRMAN. During these frequent times that you met that certain person, you
never came to know his residence?

Mr. ARNAULT. No, because he was coming to the office.

The CHAIRMAN. How tall is that certain person?

Mr. ARNAULT. Between 5-2 and 5-6.

On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and
read to him the following resolution:

Be it resolved by the Senate of the Philippines in Session assembled:

That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting
of contumacious acts committed by him during the investigation conducted by the
Special Committee created by Senate Resolution No. 8 to probe the Tambobong and
Buenavista estates deal of October 21, 1949, and that the President of the Senate
propounded to him the following interrogatories:

1. What excuse have you for persistently refusing to reveal the name of the person to
whom you gave the P440,000 on October 29, 1949, a person whose name it is
impossible for you not to remember not only because of the big amount of money you
gave to him without receipt, but also by your own statements you knew him as early as
1946 when General Ernest H. Burt was still in the Philippines, you made two other
deliveries of money to him without receipt, and the last time you saw him was in
December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that
the questions were incriminatory in nature and begging leave to be allowed to stand on his
constitutional right not to be compelled to be a witness against himself. Not satisfied with that
written answer Senator Sumulong, over the objection of counsel for the petitioner, propounded
to the latter the following question:

Sen. SUMULONG. During the investigation, when the Committee asked you for the
name of that person to whom you gave the P440,000, you said that you can [could] not
remember his name. That was the reason then for refusing to reveal the name of the
person. Now, in the answer that you have just cited, you are refusing to reveal the name
of that person to whom you gave the P440,000 on the ground that your answer will be
self-incriminating. Now, do I understand from you that you are abandoning your former
claim that you cannot remember the name of that person, and that your reason now for
your refusal to reveal the name of that person is that your answer might be self-
incriminating? In other words, the question is this: What is your real reason for refusing
to reveal the name of that person to whom you gave the P440,000: that you do not
remember his name or that your answer would be self-incriminating?

xxx     xxx     xxx

Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the
accused should not be required to testify unless he so desires.

The PRESIDENT. It is the duty of the respondent to answer the question. The question
is very clear. It does not incriminate him.

xxx     xxx     xxx

Mr. ARNAULT. I stand by every statement that I have made before the Senate
Committee on the first, second, and third hearings to which I was made in my letter to
this Senate of May 2, 1950, in which I gave all the reasons that were in my powers to
give, as requested. I cannot change anything in those statements that I made because
they represent the best that I can do , to the best of my ability.

The PRESIDENT. You are not answering the question. The answer has nothing to do
with the question.

Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you gave
during the investigation for not revealing the name of the person to whom you gave the
P440,000 is not the same reason that you are now alleging because during the
investigation you told us: "I do not remember his name." But, now, you are now saying:
"My answer might incriminate me." What is your real position?

Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first,
second, and third hearings. I said that I wanted to be excused from answering the
question. I beg to be excused from making any answer that might be incriminating in
nature. However, in this answer, if the detail of not remembering the name of the person
has not been included, it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you
remember or not the name of the person to whom you gave the P440,000?

Mr. ARNAULT. I do not remember .

Sen. SUMULONG. Now, if you do not remember the name of that person, how can you
say that your answer might be incriminating? If you do not remember his name, you
cannot answer the question; so how could your answer be self-incriminating? What do
you say to that?

Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to
answer those questions. That is why I asked for a lawyer, so he can help me. I have no
means of knowing what the situation is about. I have been in jail 13 days without
communication with the outside. How could I answer the question? I have no knowledge
of legal procedure or rule, of which I am completely ignorant.

xxx     xxx     xxx

Sen. SUMULONG. Mr. President, I ask that the question be answered.

The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does
not incriminate the witness.

xxx     xxx     xxx

Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be

excused from making further answer, please.

Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President
of the Senate, dated May 2, 1950, you stated there that you cannot reveal the name of
the person to whom you gave the P440,000 because if he is a public official you might
render yourself liable for prosecution for bribery, and that if he is a private individual you
might render yourself liable for prosecution for slander. Why did you make those
statements when you cannot even tell us whether that person to whom you gave the
P440,000 is a public official or a private individual ? We are giving you this chance to
convince the Senate that all these allegations of yours that your answers might
incriminate you are given by you honestly or you are just trying to make a pretext for not
revealing the information desired by the Senate.

The PRESIDENT. You are ordered to answer the question.

Mr. ARNAULT. I do not even understand the question. (The question is restated and
explained.)

Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it. That
is all I can say how I stand about this letter. I have no knowledge myself enough to write
such a letter, so I had to secure the help of a lawyer to help me in my period of distress.
In that same session of the Senate before which the petitioner was called to show cause why he
should not be adjudged guilty of contempt of the Senate, Senator Sumulong propounded to the
petitioner questions tending to elicit information from him as to the identity of the person to
whom he delivered the P440,000; but the petitioner refused to reveal it by saying that he did not
remember. The President of the Senate then propounded to him various questions concerning
his past activities dating as far back as when witness was seven years of age and ending as
recently as the post liberation period, all of which questions the witness answered satisfactorily.
In view thereof, the President of the Senate also made an attempt to illicit the desired
information from the witness, as follows:

The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you
deliver the P440,000 as a gift, or of any consideration?

Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.

The PRESIDENT. Was it the first time you saw that person?

Mr. ARNAULT. I saw him various times, I have already said.

The PRESIDENT. In spite of that, you do not have the least remembrance of the name
of that person?

Mr. ARNAULT. I cannot remember.

The PRESIDENT. How is it that you do not remember events that happened a short time
ago and, on the other hand, you remember events that occurred during your childhood?

Mr. ARNAULT. I cannot explain.

The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted
whereby the petitioner was committed to the custody of the Sergeant-at-Arms and imprisoned
until "he shall have purged the contempt by revealing to the Senate or to the aforesaid Special
Committee the name of the person to whom he gave the P440,000, as well as answer other
pertinent questions in connection therewith."

The Senate also adopted on the same date another resolution (No. 16) , to wit:

That the Special Committee created by Senate Resolution No. 8 be empowered and
directed to continue its investigation of the Tambobong and Buenavista Estates deal of
October 21, 1949, more particularly to continue the examination of Jean L. Arnault
regarding the name of the person to whom he gave the P440,000 and other matters
related therewith.

The first session of the Second Congress was adjourned at midnight on May 18, 1950.

The case was argued twice before us. We have given its earnest and prolonged consideration
because it is the first of its kind to arise since the Constitution of the Republic of the Philippines
was adopted. For the first time this Court is called upon to define the power of either House of
Congress to punish a person not a member for contempt; and we are fully conscious that our
pronouncements here will set an important precedent for the future guidance of all concerned.

Before discussing the specific issues raised by the parties, we deem it necessary to lay down
the general principles of law which form the background of those issues.

Patterned after the American system, our Constitution vests the powers of the Government in
three independent but coordinate Departments — Legislative, Executive, and Judicial. The
legislative power is vested in the Congress, which consists of the Senate and the House of
Representatives. (Section 1, Article VI.) Each house may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its
Members, expel a Member. (Section 10, Article VI.) The judicial power is vested in the Supreme
Court and in such inferior courts as may be established by law. (Section 1, Article VIII.) Like the
Constitution of the United States, ours does not contain an express provision empowering either
of the two Houses of Congress to punish nonmembers for contempt. It may also be noted that
whereas in the United States the legislative power is shared by and between the Congress of
the United States, on the one hand, and the respective legislatures of the different States, on
the other — the powers not delegated to the United States by the Constitution nor prohibited by
it to States being reserved to the States, respectively, or to the people — in the Philippines, the
legislative power is vested in the Congress of the Philippines alone. It may therefore be said that
the Congress of the Philippines has a wider range of legislative field than the Congress of the
United States or any State Legislature. Our form of Government being patterned after the
American system — the framers of our Constitution having drawn largely from American
institutions and practices — we can, in this case, properly draw also from American precedents
in interpreting analogous provisions of our Constitution, as we have done in other cases in the
past. Although there is no provision in the Constitution expressly investing either House of
Congress with power to make investigations and exact testimony to the end that it may exercise
its legislative functions as to be implied. In other words, the power of inquiry — with process to
enforce it — is an essential and appropriate auxiliary to the legislative function. A legislative
body cannot legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to effect or change; and where the legislative body
does not itself possess the requisite information — which is not infrequently true — recourse
must be had to others who do possess it. Experience has shown that mere requests for such
information are often unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain what is needed.
(McGrain vs. Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the
Constitution expressly gives to Congress the power to punish its Members for disorderly
behavior, does not by necessary implication exclude the power to punish for contempt any other
person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed., 242.) But no person can be punished
for contumacy as a witness before either House, unless his testimony is required in a matter into
which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).

Since, as we have noted, the Congress of the Philippines has a wider range of legislative field
than either the Congress of the United States or a State Legislature, we think it is correct to say
that the field of inquiry into which it may enter is also wider. It would be difficult to define any
limits by which the subject matter of its inquiry can be bounded. It is not necessary to do so in
this case. Suffice it to say that it must be coextensive with the range of the legislative power.

In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to
investigate the Buenavista and Tambobong Estates deal is not challenged by the petitioner; and
we entertain no doubt as to the Senate's authority to do so and as to the validity of Resolution
No. 8 hereinabove quoted. The transaction involved a questionable and allegedly unnecessary
and irregular expenditure of no less than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies created by Congress to regulate
or even abolish. As a result of the yet uncompleted investigation, the investigating committee
has recommended and the Senate approved three bills (1) prohibiting the Secretary of Justice
or any other department head from discharging functions and exercising powers other than
those attached to his own office, without ]previous congressional authorization; (2) prohibiting
brothers and near relatives of any President of the Philippines from intervening directly or
indirectly and in whatever capacity in transactions in which the Government is a party, more
particularly where the decision lies in the hands of executive or administrative officers who are
appointees of the President; and (3) providing that purchases of the Rural Progress
Administration of big landed estates at a price of P100,000 or more, shall not become effective
without previous congressional confirmation.2

We shall now consider and pass upon each of the questions raised by the petitioner in support
of his contention that his commitment is unlawful.

First He contends that the Senate has no power to punish him for contempt for refusing to
reveal the name of the person to whom he gave the P440,000, because such information is
immaterial to, and will not serve, any intended or purported legislation and his refusal to answer
the question has not embarrassed, obstructed, or impeded the legislative process. It is argued
that since the investigating committee has already rendered its report and has made all its
recommendations as to what legislative measures should be taken pursuant to its findings,
there is no necessity to force the petitioner to give the information desired other than that
mentioned in its report, to wit: "In justice to Judge Quirino and to Secretary Nepomuceno, this
atmosphere of suspicion that now pervades the public mind must be dissipated, and it can only
be done if appropriate steps are taken by the Senate to compel Arnault to stop pretending that
he cannot remember the name of the person to whom he gave the P440,000 and answer the
questions which will definitely establish the identity of that person . . ." Senator Sumulong,
Chairman of the Committee, who appeared and argued the case for the respondents, denied
that that was the only purpose of the Senate in seeking the information from the witness. He
said that the investigation had not been completed, because, due to the contumacy of the
witness, his committee had not yet determined the parties responsible for the anomalous
transaction as required by Resolution No. 8; that, by Resolution No. 16, his committee was
empowered and directed to continue its investigation, more particularly to continue its
examination of the witness regarding the name of the person to whom he gave the P440,000
and other matters related therewith; that the bills recommended by his committee had not been
approved by the House and might not be approved pending the completion of the investigation;
and that those bills were not necessarily all the measures that Congress might deem it
necessary to pass after the investigation is finished.

Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to

make, we think the investigating committee has the power to require a witness to answer any
question pertinent to that inquiry, subject of course to his constitutional right against self-
incrimination. The inquiry, to be within the jurisdiction of the legislative body to make, must be
material or necessary to the exercise of a power in it vested by the Constitution, such as to
legislate, or to expel a Member; and every question which the investigator is empowered to
coerce a witness to answer must be material or pertinent to the subject of the inquiry or
investigation. So a witness may not be coerced to answer a question that obviously has no
relation to the subject of the inquiry. But from this it does not follow that every question that may
be propounded to a witness must be material to any proposed or possible legislation. In other
words, the materiality of the question must be determined by its direct relation to any proposed
or possible legislation. The reason is, that the necessity or lack of necessity for legislative action
and the form and character of the action itself are determined by the sum total of the information
to be gathered as a result of the investigation, and not by a fraction of such information elicited
from a single question.

In this connection, it is suggested by counsel for the respondents that the power of the Court is
limited to determining whether the legislative body has jurisdiction to institute the inquiry or
investigation; that once that jurisdiction is conceded, this Court cannot control the exercise of
that jurisdiction; and it is insinuated, that the ruling of the Senate on the materiality of the
question propounded to the witness is not subject to review by this Court under the principle of
the separation of powers. We have to qualify this proposition. As was said by the Court of
Appeals of New York: "We are bound to presume that the action of the legislative body was with
a legitimate object if it is capable of being so construed, and we have no right to assume that
the contrary was intended." (People ex rel. McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49;
2 N.E., 615, quoted with approval by the Supreme Court of the United States in the said case of
McGrain vs. Daugherty, it is necessary deduction from the decision in Re Chapman, 41 L. ed.,
1154, that where the questions are not pertinent to the matter under inquiry a witness rightfully
may refuse to answer. So we are of the opinion that where the alleged immateriality of the
information sought by the legislative body from a witness is relied upon to contest its jurisdiction,
the court is in duty bound to pass upon the contention. The fact that the legislative body has
jurisdiction or the power to make the inquiry would not preclude judicial intervention to correct a
clear abuse of discretion in the exercise of that power.

Applying the criterion laid down in the last two preceding paragraphs to the resolution of the
issue under consideration, we find that the question for the refusal to answer which the
petitioner was held in contempt by the Senate is pertinent to the matter under inquiry. In fact,
this is not and cannot be disputed. Senate Resolution No. 8, the validity of which is not
challenged by the petitioner, requires the Special Committee, among other things, to determine
the parties responsible for the Buenavista and Tambobong estates deal, and it is obvious that
the name of the person to whom the witness gave the P440,000 involved in said deal is
pertinent to that determination — it is in fact the very thing sought to be determined. The
contention is not that the question is impertinent to the subject of the inquiry but that it has no
relation or materiality to any proposed legislation. We have already indicated that it is not
necessary for the legislative body to show that every question propounded to a witness is
material to any proposed or possible legislation; what is required is that is that it be pertinent to
the matter under inquiry.

It is said that the Senate has already approved the three bills recommended by the Committee
as a result of the uncompleted investigation and that there is no need for it to know the name of
the person to whom the witness gave the P440,000. But aside from the fact that those bills have
not yet been approved by the lower house and by the President and that they may be withdrawn
or modified if after the inquiry is completed they should be found unnecessary or inadequate,
there is nothing to prevent the Congress from approving other measures it may deem necessary
after completing the investigation. We are not called upon, nor is it within our province, to
determine or imagine what those measures may be. And our inability to do so is no reason for
overruling the question propounded by the Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The inquiry there in
question was conducted under a resolution of the Senate and related to charges, published in
the press, that senators were yielding to corrupt influences in considering a tariff bill then before
the Senate and were speculating in stocks the value of which would be affected by pending
amendments to the bill. Chapman, a member of a firm of stock brokers dealing in the stock of
the American Sugar Refining Company, appeared before the committee in response to a
subpoena and asked, among others, the following questions:

Had the firm, during the month of March, 1894, bought or sold any stock or securities,
known as sugar stocks, for or in the interest, directly or indirectly, of any United Senate
senator?

Was the said firm at that time carrying any sugar stock for the benefit of, or in the
interest, directly or indirectly, of any United Senate senator?

He refused to answer the questions and was prosecuted under an Act of Congress for contempt
of the Senate. Upon being convicted and sent to jail he petitioned the Supreme Court of the
United States for a writ of habeas corpus. One of the questions decided by the Supreme Court
of the United States in that case was whether the committee had the right to compel the witness
to answer said questions, and the Court held that the committee did have such right, saying:

The questions were undoubtedly pertinent to the subject-matter of the inquiry. The

resolution directed the committee to inquire whether any senator has been, or is,
speculating in what are known as sugar stocks during the consideration of the tariff bill
now before the Senate." What the Senate might or might not do upon the facts when
ascertained, we cannot say, nor are we called upon to inquire whether such ventures
might be defensible, as contended in argument, but is plain that negative answers would
have cleared that body of what the Senate regarded as offensive imputations, while
affirmative answers might have led to further action on the part of the Senate within its
constitutional powers. (Emphasis supplied.)

It may be contended that the determination of the parties responsible for the deal is incumbent
upon the judicial rather than upon the legislative branch. But we think there is no basis in fact or
in law for such assumption. The petitioner has not challenged the validity of Senate Resolution
No. 8, and that resolution expressly requires the committee to determine the parties responsible
for the deal. We are bound to presume that the Senate has acted in the due performance of its
constitutional function in instituting the inquiry, if the act is capable of being so construed. On
the other hand, there is no suggestion that the judiciary has instituted an inquiry to determine
the parties responsible for the deal. Under the circumstances of the case, it appearing that the
questioned transaction was affected by the head of the Department of Justice himself, it is not
reasonable to expect that the Fiscal or the Court of First Instance of Manila will take the initiative
to investigate and prosecute the parties responsible for the deal until and unless the Senate
shall determined those parties are and shall taken such measures as may be within its
competence to take the redress the wrong that may have been committed against the people as
a result of the transaction. As we have said, the transaction involved no less than P5,000,000 of
public funds. That certainly is a matter of a public concern which it is the duty of the
constitutional guardian of the treasury to investigate.

If the subject of investigation before the committee is within the range of legitimate legislative
inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its
process may be enforced by the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49;
79 S.E., 670; 40 Ann. Cas. [1916 B.], 1115.)

The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner,
is not applicable here. In that case the inquiry instituted by the House of Representatives of the
United States related to a private real-estate pool or partnership in the District of Columbia. Jay
Cook and Company had had an interest in the pool but become bankrupts, and their estate was
in course of administration in a federal bankruptcy court in Pennsylvania. The United States was
one of their creditors. The trustee in the bankruptcy proceeding had effected a settlement of the
bankrupts' interest in the pool, and of course his action was subject to examination and approval
or disapproval by the bankruptcy court. Some of the creditors, including the United States, were
dissatisfied with the settlement. The resolution of the House directed the Committee "to inquire
into the nature and history of said real-estate pool and the character of said settlement, with the
amount of property involve, in which Jay Cooke and Co. were interested, and the amount paid
or to be paid in said settlement, with power to send for persons and papers, and report to this
House." The Supreme Court of the United States, speaking thru Mr. Justice Miller, pointed out
that the resolution contained no suggestion of contemplated legislation; that the matter was one
in respect of which no valid legislation could be had; that the bankrupts' estate and the trustee's
settlement were still pending in the bankruptcy court; and that the United States and other
creditors were free to press their claims in that proceeding. And on these grounds the court held
that in undertaking the investigation "the House of Representatives not only exceeded the limit
of its own authority, but assumed a power which could only be properly exercised by another
branch of the government, because the power was in its nature clearly judicial." The principles
announced and applied in that case are: that neither House of Congress possesses a "general
power of making inquiry into the private affairs of the citizen"; that the power actually possessed
is limited to inquires relating to matters of which the particular House has jurisdiction, and in
respect of which it rightfully may take other action; that if the inquiry relates to a matter wherein
relief or redress could be had only by judicial proceeding, it is not within the range of this power ,
but must be left to the court, conformably to the constitutional separation of government powers.

That case differs from the present case in two important respects: (1) There the court found that
the subject of the inquiry, which related to a private real-estate pool or partnership, was not
within the jurisdiction of either House of Congress; while here if it is not disputed that the subject
of the inquiry, which relates to a transaction involving a questionable expenditure by the
Government of P5,000,000 of public funds, is within the jurisdiction of the Senate, (2) There the
claim of the Government as a creditor of Jay Cooke and Company, which had had an interest in
the pool, was pending adjudication by the court; while here the interposition of the judicial power
on the subject of the inquiry cannot be expected, as we have pointed out above, until after the
Senate shall have determined who the parties responsible are and shall have taken such
measures as may be within its competence to take to redress the wrong that may have been
committed against the people as a result of the transaction.

It is interesting to note that the decision in the case of Killbourn vs. Thompson has evoked
strong criticisms from legal scholars. (See Potts, Power of Legislative Bodies to Punish for
Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land is, Constitutional Limitations on
the Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We
quoted the following from Professor Land is' criticism: "Mr. Justice Miller saw the case purely as
an attempt by the House to secure to the Government certain priority rights as creditor of the
bankrupt concern. To him it assumed the character of a lawsuit between the Government and
Jay Cooke and Co., with the Government, acting through the House, attempting to override the
orderliness of established procedure and thereby prefer a creditors' bill not before the courts but
before Congress. That bankruptcy proceedings had already been instituted against Jay Cooke
and Co., in a federal court gave added impetus to such a conception. The House was seeking
to oust a court of prior acquired jurisdiction by an extraordinary and unwarranted assumption of
"judicial power"! The broader aspect of the investigation had not been disclosed to the Court.
That Jay Cooke and Co.'s indebtedness and the particular funds in question were only part of
the great administrative problem connected with the use and disposition of public monies, that
the particular failure was of consequence mainly in relation to the security demanded for all
government deposits, that the facts connected with one such default revealed the possibility of
other and greater maladministration, such considerations had not been put before the Court.
Nor had it been acquainted with the every-day nature of the particular investigation and the
powers there exerted by the House, powers whose exercise was customary and familiar in
legislative practice. Instead of assuming the character of an extraordinary judicial proceeding,
the inquiry, place in its proper background, should have been regarded as a normal and
customary part of the legislative process. Detailed definiteness of legislative purpose was thus
made the demand of the court in Killbourn vs. Thompson. But investigators cannot foretell the
results that may be achieved. The power of Congress to exercise control over a real-estate pool
is not a matter for abstract speculation but one to be determined only after an exhaustive
examination of the problem. Relationship, and not their possibilities, determine the extent of
congressional power. Constitutionality depends upon such disclosures. Their presence, whether
determinative of legislative or judicial power, cannot be relegated to guesswork. Neither
Congress nor the Court can predict, prior to the event, the result of the investigation."

The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881.
The question there was whether the House of Representatives exceeded its power in punishing,
as for contempt of its authority, the District Attorney of the Southern District of New York, who
had written, published, and sent to the chairman of one of its committees an ill-tempered and
irritating letter respecting the action and purposes of the committee in interfering with the
investigation by the grand jury of alleged illegal activities of a member of the House of
Representatives. Power to make inquires and obtain evidence by compulsory process was not
involved. The court recognized distinctly that the House of Representatives had implied power
to punish a person not a member for contempt, but held that its action in this instance was
without constitutional justification. The decision was put on the ground that the letter, while
offensive and vexatious, was not calculated or likely to affect the House in any of its
proceedings or in the exercise of any of its functions. This brief statement of the facts and the
issues decided in that case is sufficient to show the inapplicability thereof to the present case.
There the contempt involved consisted in the district attorney's writing to the chairman of the
committee an offensive and vexatious letter, while here the contempt involved consists in the
refusal of the witness to answer questions pertinent to the subject of an inquiry which the
Senate has the power and jurisdiction to make . But in that case, it was recognized that the
House of Representatives has implied power to punish a person not a member of contempt. In
that respect the case is applicable here in favor of the Senate's (and not of the Petitioner's )
contention.

Second. It is next contended for the petitioner that the Senate lacks authority to commit him for
contempt for a term beyond its period of legislative session, which ended on May 18, 1950. This
contention is based on the opinion of Mr. Justice Malcolm, concurred in by Justices Street and
Villa-Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it appears
that on October 23, 1929, Candido Lopez assaulted a member of the House of Representatives
while the latter was going to the hall of the House of Representatives to attend the session
which was then about to begin, as a result of which assault said representative was unable to
attend the sessions on that day and those of the two days next following by reason of the
threats which Candido Lopez made against him. By the resolution of the House adopted
November 6, 1929, Lopez was declared guilty of contempt of the House of Representatives and
ordered punished by confinement in Bilibid Prison for a period of twenty-four hours. That
resolution was not complied with because the session of the House of Representatives
adjourned at midnight on November 8, 1929, and was reiterated at the next session on
September 16, 1930. Lopez was subsequently arrested, whereupon he applied for the writ
of habeas corpus in the Court of First Instance of Manila, which denied the application. Upon
appeal to the Supreme Court, six justices voted to grant the writ: Justice Malcolm, Street, and
Villa-real, on the ground that the term of imprisonment meted out to the petitioner could not
legally be extended beyond the session of the body in which the contempt occurred; and
Justices Johns, Villamor, and Ostrand, on the ground that the Philippine Legislature had no
power to punish for contempt because it was a creature merely of an Act of the Congress of the
United States and not of a Constitution adopted by the people. Chief Justice Avanceña, Justice
Johnson, and Justice Romualdez wrote separate opinions, concurring with Justice Malcolm,
Street, and Villa-Real, that the Legislature had inherent power to punish for contempt but
dissenting from the opinion that the order of commitment could only be executed during the
particular session in which the act of contempt was committed.

Thus, on the question under consideration, the Court was equally divided and no decisive
pronouncement was made. The opinion of Mr. Justice Malcolm is based mainly on the following
passage in the case of Anderson vs. Dunn, supra:

And although the legislative power continues perpetual, the legislative body ceases to
exist on the moment of its adjournment or periodical dissolution. It follows that
imprisonment must terminate with that adjournment.

as well as on the following quotation from Marshall vs. Gordon, supra:

And the essential nature of the power also makes clear the cogency and application of
the two limitations which were expressly pointed out in Anderson vs. Dunn, supra, that
is, that the power even when applied to subjects which justified its exercise is limited to
imprisonment and such imprisonment may not be extended beyond the session of the
body in which the contempt occurred.

Interpreting the above quotations, Chief Justice Avanceña held:

From this doctrine it follows, in my judgement, that the imposition of the penalty is limited
to the existence of the legislative body, which ceases to function upon its final periodical
dissolution. The doctrine refers to its existence and not to any particular session thereof.
This must be so, inasmuch as the basis of the power to impose such penalty is the right
which the Legislature has to self-preservation, and which right is enforceable during the
existence of the legislative body. Many causes might be conceived to constitute
contempt to the Legislature, which would continue to be a menace to its preservation
during the existence of the legislative body against which contempt was committed.

If the basis of the power of the legislature to punish for contempt exists while the
legislative body exercising it is in session, then that power and the exercise thereof must
perforce continue until the final adjournment and the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from
Cooley's Constitutional Limitations and from Jefferson's Manual, is to the same effect. Mr.
Justice Romualdez said: "In my opinion, where as in the case before us, the members
composing the legislative body against which the contempt was committed have not yet
completed their three-year term, the House may take action against the petitioner herein."

We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by
Justice Malcolm are obiter dicta. Anderson vs. Dunn was an action of trespass against the
Sergeant-at-Arms of the House of Representatives of the United States for assault and battery
and false imprisonment. The plaintiff had been arrested for contempt of the House, brought
before the bar of the House, and reprimanded by the Speaker, and then discharged from
custody. The question as to the duration of the penalty was not involved in that case. The
question there was "whether the House of Representatives can take cognizance of contempt
committed against themselves, under any circumstances." The court there held that the House
of Representatives had the power to punish for contempt, and affirmed the judgment of the
lower court in favor of the defendant. In Marshall vs. Gordon, the question presented was
whether the House had the power under the Constitution to deal with the conduct of the district
attorney in writing a vexatious letter as a contempt of its authority, and to inflict punishment
upon the writer for such contempt as a matter of legislative power. The court held that the
House had no such power because the writing of the letter did not obstruct the performance of
legislative duty and did not endanger the preservation of the power of the House to carry out its
legislative authority. Upon that ground alone, and not because the House had adjourned, the
court ordered the discharge of the petitioner from custody.

The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it
appears that the Senate had adopted a resolution authorizing and directing a select committee
of five senators to investigate various charges of misfeasance and nonfeasance in the
Department of Justice after Attorney General Harry M. Daugherty became its supervising head.
In the course of the investigation the committee caused to be served on Mally S. Daugherty,
brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court
House, Ohio, a subpoena commanding him to appear before it for the purpose of giving
testimony relating to the subject under consideration. The witness failed to appear without
offering any excuse for his failure. The committee reported the matter to the Senate and the
latter adopted a resolution, "That the President of the Senate pro tempore issue his warrant
commanding the Sergeant-at-Arms or his deputy to take into custody the body of the said M.S.
Daugherty wherever found, and to bring the said M.S. Daugherty before the bar of the Senate,
then and there to answer such questions pertinent to the matter under inquiry as the Senate
may order the President of the Senate pro tempore to propound; and to keep the said M.S.
Daugherty in custody to await the further order of the Senate." Upon being arrested, the witness
petitioned the federal court in Cincinnati for a writ of habeas corpus. The federal court granted
the writ and discharged the witness on the ground that the Senate, in directing the investigation
and in ordering the arrest, exceeded its power under the Constitution. Upon appeal to the
Supreme Court of the United States, one of the contentions of the witness was that the case ha
become moot because the investigation was ordered and the committee was appointed during
the Sixty-eighth Congress, which expired on March 4, 1926. In overruling the contention, the
court said:

. . . The resolution ordering the investigation in terms limited the committee's authority to
the period of the Sixty-eighth Congress; but this apparently was changed by a later and
amendatory resolution authorizing the committee to sit at such times and places as it
 might deem advisable or necessary. It is said in Jefferson's Manual: "Neither House can
continue any portion of itself in any parliamentary function beyond the end of the session
without the consent of the other two branches. When done, it is by a bill constituting
them commissioners for the particular purpose." But the context shows that the
reference is to the two houses of Parliament when adjourned by prorogation or
dissolution by the King. The rule may be the same with the House of Representatives
whose members are all elected for the period of a single Congress: but it cannot well be
the same with the Senate, which is a continuing body whose members are elected for a
term of six years and so divided into classes that the seats of one third only become
vacant at the end of each Congress, two thirds always continuing into the next
Congress, save as vacancies may occur through death or resignation.

Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may
continue its committees through the recess following the expiration of a Congress;" and,
after quoting the above statement from Jefferson's Manual, he says: "The Senate,
however being a continuing body, gives authority to its committees during the recess
after the expiration of a Congress." So far as we are advised the select committee
having this investigation in charge has neither made a final report nor been discharged;
nor has been continued by an affirmative order. Apparently its activities have been
suspended pending the decision of this case. But, be this as it may, it is certain that the
committee may be continued or revived now by motion to that effect, and if, continued or
revived, will have all its original powers. This being so, and the Senate being a
continuing body, the case cannot be said to have become moot in the ordinary sense.
The situation is measurably like that in Southern P. Terminal Co. vs. Interstate
Commerce Commission, 219 U. S., 498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct.
Rep., 279, where it was held that a suit to enjoin the enforcement of an order of the
Interstate Commerce Commission did not become moot through the expiration of the
order where it was capable of repetition by the Commission and was a matter of public
interest. Our judgment may yet be carried into effect and the investigation proceeded
with from the point at which it apparently was interrupted by reason of the habeas
corpus proceedings. In these circumstances we think a judgment should be rendered as
was done in the case cited.

What has been said requires that the final order in the District Court discharging the
witness from custody be reversed.

Like the Senate of the United States , the Senate of the Philippines is a continuing body whose
members are elected for a term of six years and so divided that the seats of only one-third
become vacant every two years, two-thirds always continuing into the next Congress save as
vacancies may occur thru death or resignation. Members of the House of Representatives are
all elected for a term of four years; so that the term of every Congress is four years. The Second
Congress of the Philippines was constituted on December 30, 1949, and will expire on
December 30, 1953. The resolution of the Senate committing the Petitioner was adopted during
the first session of the Second Congress, which began on the fourth Monday of January and
ended in May 18, 1950.

Had said resolution of commitment been adopted by the House of Representatives, we think it
could be enforced until the final adjournment of the last session of the Second Congress in
1953. We find no sound reason to limit the power of the legislative body to punish for contempt
to the end of every session and not to the end of the last session terminating the existence of
that body. The very reason for the exercise of the power to punish for contempt is to enable the
legislative body to perform its constitutional function without impediment or obstruction.
Legislative functions may be and in practice are performed during recess by duly constituted
committees charged with the duty of performing investigations or conducting hearing relative to
any proposed legislation. To deny to such committees the power of inquiry with process to
enforce it would be to defeat the very purpose for which that the power is recognized in the
legislative body as an essential and appropriate auxiliary to is legislative function. It is but logical
to say that the power of self-preservation is coexistent with the life to be preserved.

But the resolution of commitment here in question was adopted by the Senate, which is a
continuing body and which does not cease exist upon the periodical dissolution of the Congress
or of the House of Representatives. There is no limit as to time to the Senate's power to punish
for contempt in cases where that power may constitutionally be exerted as in the present case.

Mere reflection upon the situation at hand convinces us of the soundness of this proposition.
The Senate has ordered an investigation of the Buenavista and Tambobong estates deal, which
we have found it is within its competence to make. That investigation has not been completed
because of the refusal of the petitioner as a witness to answer certain questions pertinent to the
subject of the inquiry. The Senate has empowered the committee to continue the investigation
during the recess. By refusing to answer the questions, the witness has obstructed the
performance by the Senate of its legislative function, and the Senate has the power to remove
the obstruction by compelling the witness to answer the questions thru restraint of his liberty
until he shall have answered them. That power subsists as long as the Senate, which is a
continuing body, persists in performing the particular legislative function involved. To hold that it
may punish the witness for contempt only during the session in which investigation was begun,
would be to recognize the right of the Senate to perform its function but at the same time to
deny to it an essential and appropriate means for its performance. Aside from this, if we should
hold that the power to punish for contempt terminates upon the adjournment of the session, the
Senate would have to resume the investigation at the next and succeeding sessions and repeat
the contempt proceedings against the witness until the investigation is completed-an absurd,
unnecessary, and vexatious procedure, which should be avoided.

As against the foregoing conclusion it is argued for the petitioner that the power may be
abusively and oppressively exerted by the Senate which might keep the witness in prison for
life. But we must assume that the Senate will not be disposed to exert the power beyond its
proper bounds. And if, contrary to this assumption, proper limitations are disregarded, the
portals of this Court are always open to those whose rights might thus be transgressed.

Third. Lastly, the petitioner invokes the privilege against self-incrimination. He contends that he
would incriminate himself if he should reveal the name of the person to whom he gave the
P440,000 if that person be a public official be (witness) might be accused of bribery, and if that
person be a private individual the latter might accuse him of oral defamation.

The ground upon which the witness' claim is based is too shaky, in firm, and slippery to afford
him safety. At first he told the Committee that the transactions were legal, that no laws were
violated, and that all requisites had been replied with; but at the time he begged to be excused
from making answers "which might later be used against me." A little later he explained that
although the transactions were legal he refused to answer questions concerning them "because
it violates the right of a citizen to privacy in his dealings with other people . . . I simply stand on
my privilege to dispose of the money that has been paid to me as a result of a legal transaction
without having to account for the use of it." But after being apparently convinced by the
Committee that his position was untenable, the witness testified that, without securing any
receipt, he turned over the P440,000 to a certain person, a representative of Burt, in compliance
with Burt's verbal instruction made in 1946; that as far as he know, that certain person had
nothing to do with the negotiations for the settlement of the Buenavista and Tambobong cases;
that he had seen that person several times before he gave him the P440,000 on October 29,
1949, and that since then he had seen him again two or three times, the last time being in
December, 1949, in Manila; that the person was a male, 39 to 40 years of age, between 5 feet,
2 inches and 5 feet, 6 inches in height. Butt the witness would not reveal the name of that
person on these pretexts: " I don't remember the name; he was a representative of Burt." "I am
not sure; I don't remember the name."

We are satisfied that those answers of the witness to the important question, what is the name
of that person to whom you gave the P440,000? were obviously false. His insistent claim before
the bar of the Senate that if he should reveal the name he would incriminate himself, necessarily
implied that he knew the name. Moreover, it is unbelievable that he gave the P440,000 to a
person to him unknown.

"Testimony which is obviously false or evasive is equivalent to a refusal to testify and is

punishable as contempt, assuming that a refusal to testify would be so punishable." (12 Am.
Jur., sec. 15, Contempt, pp. 399-400.) In the case of Mason vs. U.S., 61 L. ed., 1198, it appears
that Mason was called to testify before a grand jury engaged in investigating a charge of
gambling against six other men. After stating that he was sitting at a table with said men when
they were arrested, he refused to answer two questions, claiming so to do might tend to
incriminate him: (1) "Was there a game of cards being played on this particular evening at the
table at which you are sitting?" (2) "Was there a game of cards being played at another table at
this time?" The foreman of the grand jury reported the matter to the judge, who ruled "that each
and all of said questions are proper and that the answers thereto would not tend to incriminate
the witness." Mason was again called and refused to answer the first question propounded to
him, but, half yielding to frustration, he said in response to the second question: "I don't know."
In affirming the conviction for contempt, the Supreme Court of the United States among other
things said:

In the present case, the witness certainly were not relieved from answering merely
because they declared that so to do might incriminate them. The wisdom of the rule in
this regard is well illustrated by the enforced answer, "I don't know ," given by Mason to
the second question, after he had refused to reply under a claim of constitutional
privilege.

Since according to the witness himself the transaction was legal, and that he gave the P440,000
to a representative of Burt in compliance with the latter's verbal instruction, we find no basis
upon which to sustain his claim that to reveal the name of that person might incriminate him.
There is no conflict of authorities on the applicable rule, to wit:

Generally, the question whether testimony is privileged is for the determination of the
Court. At least, it is not enough for the witness to say that the answer will incriminate
him. as he is not the sole judge of his liability. The danger of self-incrimination must
appear reasonable and real to the court, from all the circumstances, and from the whole
case, as well as from his general conception of the relations of the witness. Upon the
facts thus developed, it is the province of the court to determine whether a direct answer
 to a question may criminate or not. . . . The fact that the testimony of a witness may tend
to show that he has violated the law is not sufficient to entitle him to claim the protection
of the constitutional provision against self-incrimination, unless he is at the same time
liable to prosecution and punishment for such violation. The witness cannot assert his
privilege by reason of some fanciful excuse, for protection against an imaginary danger,
or to secure immunity to a third person. ( 3 Wharton's Criminal Evidence, 11th ed., secs.
1135,1136.)

It is the province of the trial judge to determine from all the facts and circumstances of
the case whether the witness is justified in refusing to answer. (People vs. Gonzo, 23
N.E. [2d], 210 [Ill. App., 1939].) A witness is not relieved from answering merely on his
own declaration that an answer might incriminate him, but rather it is for the trial judge to
decide that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)

As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty
as a citizen to give frank, sincere, and truthful testimony before a competent authority. The state
has the right to exact fulfillment of a citizen's obligation, consistent of course with his right under
the Constitution. The witness in this case has been vociferous and militant in claiming
constitutional rights and privileges but patently recreant to his duties and obligations to the
Government which protects those rights under the law. When a specific right and a specific
obligation conflict with each other, and one is doubtful or uncertain while the other is clear and
imperative, the former must give way to the latter. The right to life is one of the most sacred that
the citizen may claim, and yet the state may deprive him of it if he violates his corresponding
obligation to respect the life of others. As Mr. Justice Johnson said in Anderson vs. Dunn: "The
wretch beneath the gallows may repine at the fate which awaits him, and yet it is not certain that
the laws under which he suffers were made for the security." Paraphrasing and applying that
pronouncement here, the petitioner may not relish the restraint of his liberty pending the
fulfillment by him of his duty, but it is no less certain that the laws under which his liberty is
restrained were made for his welfare.

From all the foregoing, it follows that the petition must be denied, and it is so ordered, with
costs.
 EN BANC

G.R. No. 179271               April 21, 2009

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY

(BANAT), Petitioner,
vs.
COMMISSION ON ELECTIONS (sitting as the National Board of Canvassers), Respondent.
ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor.
AANGAT TAYO, Intervenor.
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC.
(SENIOR CITIZENS), Intervenor.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179295               April 21, 2009

BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION,

COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC., and
ABONO, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

CARPIO, J.:

The Case

Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and
Transparency (BANAT) — in a petition for certiorari and mandamus,1 assails the
Resolution2 promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in
NBC No. 07-041 (PL). The COMELEC’s resolution in NBC No. 07-041 (PL) approved the
recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC)
Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC
En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals
(ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines,
Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A
Teacher) — in a petition for certiorari with mandamus and prohibition,3 assails NBC Resolution
No. 07-604 promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties,
organizations and coalitions that obtained at least two percent of the total votes cast under the
Party-List System. The COMELEC announced that, upon completion of the canvass of the
party-list results, it would determine the total number of seats of each winning party,
organization, or coalition in accordance with Veterans Federation Party v.
COMELEC5 (Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom
Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.

The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The
COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.6

On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the
NBC. BANAT filed its petition because "[t]he Chairman and the Members of the [COMELEC]
have recently been quoted in the national papers that the [COMELEC] is duty bound to and
shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating
party-list seats."7 There were no intervenors in BANAT’s petition before the NBC. BANAT filed a
memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60.
NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections,
namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against Corruption
(CIBAC), Gabriela’s Women Party (Gabriela), Association of Philippine Electric Cooperatives
(APEC), A Teacher, Akbayan! Citizen’s Action Party (AKBAYAN), Alagad, Luzon Farmers Party
(BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural
Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below:

WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru
its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and
public proceedings, a total of fifteen million two hundred eighty three thousand six hundred
fifty-nine (15,283,659) votes under the Party-List System of Representation, in connection with
the National and Local Elections conducted last 14 May 2007;

WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of
Canvassers reveals that the projected/maximum total party-list votes cannot go any higher
than sixteen million seven hundred twenty three thousand one hundred twenty-one
(16,723,121) votes given the following statistical data:

Projected/Maximum Party-List Votes for May 2007 Elections

i. Total party-list votes already canvassed/tabulated 15,283,659

ii. Total party-list votes remaining uncanvassed/ 1,337,032
untabulated (i.e. canvass deferred)
iii. Maximum party-list votes (based on 100% 102,430
outcome) from areas not yet submitted for canvass
(Bogo, Cebu; Bais City; Pantar, Lanao del Norte;
and Pagalungan, Maguindanao)
 Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one seat each: provided, that those garnering
more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their
total number of votes: provided, finally, that each party, organization, or coalition shall be
entitled to not more than three (3) seats.

WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the
presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand
four hundred sixty-two (334,462) votes;

WHEREAS, the Supreme Court, in Citizen’s Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a
formula for the additional seats of each party, organization or coalition receving more than the
required two percent (2%) votes, stating that the same shall be determined only after all party-
list ballots have been completely canvassed;

WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three
hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows:

RANK PARTY/ORGANIZATION/ VOTES

COALITION RECEIVED
1 BUHAY 1,163,218
2 BAYAN MUNA 972,730
3 CIBAC 760,260
4 GABRIELA 610,451
5 APEC 538,971
6 A TEACHER 476,036
7 AKBAYAN 470,872
8 ALAGAD 423,076
9 BUTIL 405,052
10 COOP-NATCO 390,029
11 BATAS 386,361
12 ANAK PAWIS 376,036
13 ARC 338,194
 14 ABONO 337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF
REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the
Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-
250, all the parties, organizations and coalitions included in the aforementioned list are therefore
entitled to at least one seat under the party-list system of representation in the meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus
Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other
election laws, the Commission on Elections, sitting en banc as the National Board of
Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set
forth below, the following parties, organizations and coalitions participating under the Party-List
System:

1 Buhay Hayaan Yumabong BUHAY

2 Bayan Muna BAYAN MUNA
3 Citizens Battle Against Corruption CIBAC
4 Gabriela Women’s Party GABRIELA
5 Association of Philippine Electric APEC
Cooperatives
6 Advocacy for Teacher Empowerment A TEACHER
Through Action, Cooperation and Harmony
Towards Educational Reforms, Inc.
7 Akbayan! Citizen’s Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network Party COOP-NATCCO
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions which
may later on be established to have obtained at least two percent (2%) of the total actual votes
cast under the Party-List System.

The total number of seats of each winning party, organization or coalition shall be determined
pursuant to Veterans Federation Party versus COMELEC formula upon completion of the
canvass of the party-list results.
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS)
is hereby deferred until final resolution of SPC No. 07-250, in order not to render the
proceedings therein moot and academic.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance until final resolution of their respective
cases.

Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the
Speaker of the House of Representatives of the Philippines.

SO ORDERED.8 (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC
Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties.
We quote from the COMELEC’s interpretation of the Veterans formula as found in NBC
Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board
of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on
the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total
number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat
each;

WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National
Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based
on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes
received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is
16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties,
organizations and coalition[s] are as follows:

  Party-List Projected total number of votes

1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
10 COOP-NATCO 412,920
 11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the

highest number of votes among the thirteen (13) qualified parties, organizations and coalitions,
making it the "first party" in accordance with Veterans Federation Party versus COMELEC,
reiterated in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC;

WHEREAS, qualified parties, organizations and coalitions participating under the party-list
system of representation that have obtained one guaranteed (1) seat may be entitled to an
additional seat or seats based on the formula prescribed by the Supreme Court in Veterans;

WHEREAS, in determining the additional seats for the "first party", the correct formula as
expressed in Veterans, is:

Number of votes of first party Proportion of votes of first

= party relative to total votes for
Total votes for party-list system party-list system

wherein the proportion of votes received by the first party (without rounding off) shall entitle it to
additional seats:

Proportion of votes received Additional seats

by the first party
Equal to or at least 6% Two (2) additional seats
Equal to or greater than 4% but less than 6% One (1) additional seat
Less than 4% No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage:

1,178,747
= 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats for the other qualified parties, organizations and
coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows:

Additional seats for = No. of votes of x No. of additional

a concerned party concerned party seats allocated
 No. of votes of to first party
first party

WHEREAS, applying the above formula, the results are as follows:

Party List Percentage Additional Seat

BAYAN MUNA 1.65 1
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
ALAGAD 0.71 0
BUTIL 0.69 0
COOP-NATCO 0.69 0
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election
Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws,
the Commission on Elections en banc sitting as the National Board of Canvassers, hereby
RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or
coalitions as entitled to additional seats, to wit:

Party List Additional Seats

BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1

This is without prejudice to the proclamation of other parties, organizations or coalitions which
may later on be established to have obtained at least two per cent (2%) of the total votes cast
under the party-list system to entitle them to one (1) guaranteed seat, or to the appropriate
percentage of votes to entitle them to one (1) additional seat.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance until final resolution of their respective
cases.

Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy
hereof to the Speaker of the House of Representatives of the Philippines.

SO ORDERED.9

Acting on BANAT’s petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August
2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided
by the Constitution filed by the Barangay Association for National Advancement and
Transparency (BANAT).

Acting on the foregoing Petition of the Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers
Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041
(PL)], which reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its
Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution
prayed for the following reliefs, to wit:

1. That the full number -- twenty percent (20%) -- of Party-List representatives as

mandated by Section 5, Article VI of the Constitution shall be proclaimed.

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes,

should be harmonized with Section 5, Article VI of the Constitution and with Section 12
of the same RA 7941 in that it should be applicable only to the first party-list
representative seats to be allotted on the basis of their initial/first ranking.

3. The 3-seat limit prescribed by RA 7941 shall be applied; and

4. Initially, all party-list groups shall be given the number of seats corresponding to every
2% of the votes they received and the additional seats shall be allocated in accordance
with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by
each party-list group in relation to the total nationwide votes cast in the party-list election,
after deducting the corresponding votes of those which were allotted seats under the 2%
threshold rule. In fine, the formula/procedure prescribed in the "ALLOCATION OF
PARTY-LIST SEATS, ANNEX "A" of COMELEC RESOLUTION 2847 dated 25 June
1996, shall be used for [the] purpose of determining how many seats shall be
 proclaimed, which party-list groups are entitled to representative seats and how many of
their nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941

and that the procedure in allocating seats for party-list representative prescribed by
Section 12 of RA 7941 shall be followed.

R E C O M M E N D A T I O N:

The petition of BANAT is now moot and academic.

The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the
Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and
Coalitions Participating Under the Party-List System During the May 14, 2007 National and
Local Elections" resolved among others that the total number of seats of each winning party,
organization or coalition shall be determined pursuant to the Veterans Federation
Party versus COMELEC formula upon completion of the canvass of the party-list
results."1awphi1

WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it

hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig,
Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic.

Let the Supervisory Committee implement this resolution.

SO ORDERED.10

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No.
07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to
reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60
because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A.
No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of
the NBC.11

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC
proclaimed three other party-list organizations as qualified parties entitled to one guaranteed
seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc.
(AGAP),12 Anak Mindanao (AMIN),13 and An Waray.14 Per the certification15 by COMELEC, the
following party-list organizations have been proclaimed as of 19 May 2008:

Party-List No. of Seat(s)

1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
 1.5 APEC 2
1.6 A Teacher 1
1.7 Akbayan 1
1.8 Alagad 1
1.9 Butil 1
1.1
Coop-Natco [sic] 1
0
1.1
Anak Pawis 1
1
1.1
ARC 1
2
1.1
Abono 1
3
1.1
AGAP 1
4
1.1
AMIN 1
5

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),

against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification
of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before
the COMELEC, was deferred pending final resolution of SPC No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section 5(2),
Article VI of the Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold and "qualifier" votes prescribed by the same Section
11(b) of RA 7941 constitutional?

4. How shall the party-list representatives be allocated?16

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their
petition:

I. Respondent Commission on Elections, acting as National Board of Canvassers,

committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the
allocation of seats to qualified party-list organizations as said rule:

A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating additional
seats for the "First Party" violates the principle of proportional
representation under RA 7941.

2. The use of two formulas in the allocation of additional seats, one for the
"First Party" and another for the qualifying parties, violates Section 11(b)
of RA 7941.

3. The proportional relationships under the First Party Rule are different
from those required under RA 7941;

C. Violates the "Four Inviolable Parameters" of the Philippine party-list system as

provided for under the same case of Veterans Federation Party, et al. v.
COMELEC.

II. Presuming that the Commission on Elections did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in
the allocation of seats to qualified party-list organizations, the same being merely in
consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the
instant Petition is a justiciable case as the issues involved herein are constitutional in
nature, involving the correct interpretation and implementation of RA 7941, and are of
transcendental importance to our nation.17

Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on 22
April 2008:

1. Is the twenty percent allocation for party-list representatives in Section 5(2),

Article VI of the Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify

for one seat constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating in
the party-list elections? If not, can the major political parties be barred from
participating in the party-list elections?18

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list election has at
least four inviolable parameters as clearly stated in Veterans. For easy reference, these are:

First, the twenty percent allocation — the combined number of all party-list congressmen
shall not exceed twenty percent of the total membership of the House of
Representatives, including those elected under the party list;

Second, the two percent threshold — only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are "qualified" to have a seat
in the House of Representatives;

Third, the three-seat limit — each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and
two additional seats;

Fourth, proportional representation— the additional seats which a qualified party is

entitled to shall be computed "in proportion to their total number of votes."19

However, because the formula in Veterans has flaws in its mathematical interpretation of the
term "proportional representation," this Court is compelled to revisit the formula for the allocation
of additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

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.

(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.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. — The party-list representatives shall

constitute twenty per centum (20%) of the total number of the members of the House of
Representatives including those under the party-list.

xxx
Section 5(1), Article VI of the Constitution states that the "House of Representatives shall be
composed of not more than two hundred and fifty members, unless otherwise fixed by law." The
House of Representatives shall be composed of district representatives and party-list
representatives. The Constitution allows the legislature to modify the number of the members of
the House of Representatives.1avvphi1.zw+

Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list
representatives to the total number of representatives. We compute the number of seats
available to party-list representatives from the number of legislative districts. On this point, we
do not deviate from the first formula in Veterans, thus:

Number of seats
available to legislative
Number of seats available to
districts
x .20 = party-list representatives
.80

This formula allows for the corresponding increase in the number of seats available for party-list
representatives whenever a legislative district is created by law. Since the 14th Congress of the
Philippines has 220 district representatives, there are 55 seats available to party-list
representatives.

220
x .20 = 55
.80

After prescribing the ratio of the number of party-list representatives to the total number of
representatives, the Constitution left the manner of allocating the seats available to party-
list representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:

The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats reserved under the
Party-List System, as well as on the formula to determine the guaranteed seats to party-list
candidates garnering at least two-percent of the total party-list votes. However, there are
numerous interpretations of the provisions of R.A. No. 7941 on the allocation of "additional
seats" under the Party-List System. Veterans produced the First Party Rule,20 and Justice
Vicente V. Mendoza’s dissent in Veterans presented Germany’s Niemeyer formula21 as an
alternative.

The Constitution left to Congress the determination of the manner of allocating the seats for
party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section
11 and Section 12 of which provide:

Section 11. Number of Party-List Representatives. — x x x

In determining the allocation of seats for the second vote,22 the following procedure shall be
observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one seat each: Provided,
That those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes: Provided, finally, That
each party, organization, or coalition shall be entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. — The COMELEC

shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank
them according to the number of votes received and allocate party-list representatives
proportionately according to the percentage of votes obtained by each party, organization, or
coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate
party-list representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2%
requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute twenty percent (20%) of the total
Members of the House of Representatives including those from the party-list groups as
prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941
and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All
seats shall have to be proclaimed.

(b) All party-list groups shall initially be allotted one (1) seat for every two per centum
(2%) of the total party-list votes they obtained; provided, that no party-list groups shall
have more than three (3) seats (Section 11, RA 7941).

(c) The remaining seats shall, after deducting the seats obtained by the party-list groups
under the immediately preceding paragraph and after deducting from their total the votes
corresponding to those seats, the remaining seats shall be allotted proportionately to all
the party-list groups which have not secured the maximum three (3) seats under the 2%
threshold rule, in accordance with Section 12 of RA 7941.23

Forty-four (44) party-list seats will be awarded under BANAT’s first interpretation.

The second interpretation presented by BANAT assumes that the 2% vote requirement is
declared unconstitutional, and apportions the seats for party-list representatives by following
Section 12 of R.A. No. 7941. BANAT states that the COMELEC:

(a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide
basis;
 (b) rank them according to the number of votes received; and,

(c) allocate party-list representatives proportionately according to the percentage of

votes obtained by each party, organization or coalition as against the total nationwide
votes cast for the party-list system.24

BANAT used two formulas to obtain the same results: one is based on the proportional
percentage of the votes received by each party as against the total nationwide party-list votes,
and the other is "by making the votes of a party-list with a median percentage of votes as the
divisor in computing the allocation of seats."25 Thirty-four (34) party-list seats will be awarded
under BANAT’s second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC’s original
2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from
being filled up. They claim that both formulas do not factor in the total number of seats alloted
for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap,
but accept the 2% threshold. After determining the qualified parties, a second percentage is
generated by dividing the votes of a qualified party by the total votes of all qualified parties only.
The number of seats allocated to a qualified party is computed by multiplying the total party-list
seats available with the second percentage. There will be a first round of seat allocation, limited
to using the whole integers as the equivalent of the number of seats allocated to the concerned
party-list. After all the qualified parties are given their seats, a second round of seat allocation is
conducted. The fractions, or remainders, from the whole integers are ranked from highest to
lowest and the remaining seats on the basis of this ranking are allocated until all the seats are
filled up.26

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the
highest to the lowest based on the number of votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the lowest based on the number
of votes garnered during the elections.27

Votes Votes
Rank Party Rank Party
Garnered Garnered
1 BUHAY 1,169,234 48 KALAHI 88,868
2 BAYAN MUNA 979,039 49 APOI 79,386
3 CIBAC 755,686 50 BP 78,541
4 GABRIELA 621,171 51 AHONBAYAN 78,424
5 APEC 619,657 52 BIGKIS 77,327
6 A TEACHER 490,379 53 PMAP 75,200
7 AKBAYAN 466,112 54 AKAPIN 74,686
8 ALAGAD 423,149 55 PBA 71,544
9 COOP-NATCCO 409,883 56 GRECON 62,220
10 BUTIL 409,160 57 BTM 60,993
11 BATAS 385,810 58 A SMILE 58,717
12 ARC 374,288 59 NELFFI 57,872
13 ANAKPAWIS 370,261 60 AKSA 57,012
14 ABONO 339,990 61 BAGO 55,846
15 AMIN 338,185 62 BANDILA 54,751
16 AGAP 328,724 63 AHON 54,522
17 AN WARAY 321,503 64 ASAHAN MO 51,722
18 YACAP 310,889 65 AGBIAG! 50,837
19 FPJPM 300,923 66 SPI 50,478
20 UNI-MAD 245,382 67 BAHANDI 46,612
21 ABS 235,086 68 ADD 45,624
22 KAKUSA 228,999 69 AMANG 43,062
23 KABATAAN 228,637 70 ABAY PARAK 42,282
24 ABA-AKO 218,818 71 BABAE KA 36,512
25 ALIF 217,822 72 SB 34,835
26 SENIOR CITIZENS 213,058 73 ASAP 34,098
27 AT 197,872 74 PEP 33,938
28 VFP 196,266 75 ABA ILONGGO 33,903
29 ANAD 188,521 76 VENDORS 33,691
30 BANAT 177,028 77 ADD-TRIBAL 32,896
31 ANG KASANGGA 170,531 78 ALMANA 32,255
32 BANTAY 169,801 79 AANGAT KA PILIPINO 29,130
33 ABAKADA 166,747 80 AAPS 26,271
34 1-UTAK 164,980 81 HAPI 25,781
35 TUCP 162,647 82 AAWAS 22,946
36 COCOFED 155,920 83 SM 20,744
 37 AGHAM 146,032 84 AG 16,916
38 ANAK 141,817 85 AGING PINOY 16,729
39 ABANSE! PINAY 130,356 86 APO 16,421
40 PM 119,054 87 BIYAYANG BUKID 16,241
41 AVE 110,769 88 ATS 14,161
42 SUARA 110,732 89 UMDJ 9,445
43 ASSALAM 110,440 90 BUKLOD FILIPINA 8,915
44 DIWA 107,021 91 LYPAD 8,471
45 ANC 99,636 92 AA-KASOSYO 8,406
46 SANLAKAS 97,375 93 KASAPI 6,221
47 ABC 90,058 TOTAL 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that "parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each." This clause guarantees a seat to the two-percenters. In Table 2
below, we use the first 20 party-list candidates for illustration purposes. The percentage of votes
garnered by each party is arrived at by dividing the number of votes garnered by each party by
15,950,900, the total number of votes cast for all party-list candidates.

Table 2. The first 20 party-list candidates and their respective percentage of votes garnered
over the total votes for the party-list.28

Votes Garnered
Votes Guaranteed
Rank Party over Total Votes for
Garnered Seat
Party-List, in %
1 BUHAY 1,169,234 7.33% 1
2 BAYAN MUNA 979,039 6.14% 1
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP-NATCCO 409,883 2.57% 1
 10 BUTIL 409,160 2.57% 1
11 BATAS29 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
  Total     17
18 YACAP 310,889 1.95% 0
19 FPJPM 300,923 1.89% 0
20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the
total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the
two-percenters, are the party-list candidates that are "entitled to one seat each," or the
guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats.

The second clause of Section 11(b) of R.A. No. 7941 provides that "those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in proportion to their total
number of votes." This is where petitioners’ and intervenors’ problem with the formula
in Veterans lies. Veterans interprets the clause "in proportion to their total number of votes" to
be in proportion to the votes of the first party. This interpretation is contrary to the express
language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of the two
percent threshold for the distribution of the additional seats as found in the second clause of
Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent
threshold makes it mathematically impossible to achieve the maximum number of available
party list seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats frustrates the
attainment of the permissive ceiling that 20% of the members of the House of Representatives
shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for
the 100 participants in the party list elections. A party that has two percent of the votes cast, or
one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get
one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the
operation of the two percent threshold, this situation will repeat itself even if we increase the
available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus,
even if the maximum number of parties get two percent of the votes for every party, it is always
impossible for the number of occupied party-list seats to exceed 50 seats as long as the two
percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the
additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2),
Article VI of the Constitution and prevents the attainment of "the broadest possible
representation of party, sectoral or group interests in the House of Representatives."30

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No.
7941, the following procedure shall be observed:

1. The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one guaranteed seat each.

3. Those garnering sufficient number of votes, according to the ranking in paragraph 1,

shall be entitled to additional seats in proportion to their total number of votes until all the
additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because
they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining
available seats for allocation as "additional seats" are the maximum seats reserved under the
Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of
a provision in R.A. No. 7941 allowing for a rounding off of fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of
additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by
each party-list candidate is arrived at by dividing the number of votes garnered by each party by
15,950,900, the total number of votes cast for party-list candidates. There are two steps in the
second round of seat allocation. First, the percentage is multiplied by the remaining available
seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List
System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of
the percentage and of the remaining available seats corresponds to a party’s share in the
remaining available seats. Second, we assign one party-list seat to each of the parties next in
rank until all available seats are completely distributed. We distributed all of the remaining 38
seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine
the number of seats each qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Rank Party Votes Votes Guarantee Additiona (B) plus Applyin

Garnere Garnere d Seat l (C), in g the
d d over (First Seats whole three
Total Round) (Second integer seat cap
 Votes for
Party Round) s
(B) (E)
List, in % (C) (D)
(A)
1,169,23
1 BUHAY 7.33% 1 2.79 3 N.A.
4
BAYAN
2 979,039 6.14% 1 2.33 3 N.A.
MUNA
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
COOP-
931 409,883 2.57% 1 1 2 N.A.
NATCCO
10 BUTIL 409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
ANAKPAWI
13 370,261 2.32% 1 1 2 N.A.
S
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN WARAY 321,503 2.02% 1 1 2 N.A.
18 YACAP 310,889 1.95% 0 1 1 N.A.
19 FPJPM 300,923 1.89% 0 1 1 N.A.
20 UNI-MAD 245,382 1.54% 0 1 1 N.A.
21 ABS 235,086 1.47% 0 1 1 N.A.
22 KAKUSA 228,999 1.44% 0 1 1 N.A.
23 KABATAAN 228,637 1.43% 0 1 1 N.A.
24 ABA-AKO 218,818 1.37% 0 1 1 N.A.
 25 ALIF 217,822 1.37% 0 1 1 N.A.
SENIOR
26 213,058 1.34% 0 1 1 N.A.
CITIZENS
27 AT 197,872 1.24% 0 1 1 N.A.
28 VFP 196,266 1.23% 0 1 1 N.A.
29 ANAD 188,521 1.18% 0 1 1 N.A.
30 BANAT 177,028 1.11% 0 1 1 N.A.
ANG
31 170,531 1.07% 0 1 1 N.A.
KASANGGA
32 BANTAY 169,801 1.06% 0 1 1 N.A.
33 ABAKADA 166,747 1.05% 0 1 1 N.A.
34 1-UTAK 164,980 1.03% 0 1 1 N.A.
35 TUCP 162,647 1.02% 0 1 1 N.A.
36 COCOFED 155,920 0.98% 0 1 1 N.A.
Total 17 55

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list
representatives from the 36 winning party-list organizations. All 55 available party-list seats are
filled. The additional seats allocated to the parties with sufficient number of votes for one whole
seat, in no case to exceed a total of three seats for each party, are shown in column (D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed all political parties
to participate in the party-list elections. The deliberations of the Constitutional Commission
clearly bear this out, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party
list system because we wanted to open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system, and we would like very much
for the sectors to be there. That is why one of the ways to do that is to put a ceiling on
the number of representatives from any single party that can sit within the 50 allocated
under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify for example Christian Democrats and
Social Democrats as political parties? Can they run under the party list concept or must they be
under the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned
can field candidates for the Senate as well as for the House of Representatives. Likewise, they
can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted,
of the seats that we are allocating under the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can
also participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be
fielding only sectoral candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the
different marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he
represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela
Cruz is a farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party list
election if they can prove that they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate
because it is precisely the contention of political parties that they represent the broad base of
citizens and that all sectors are represented in them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party,
it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng
political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito
reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa
political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system,
would UNIDO be banned from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass
organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I
see no reason why they should not be able to make common goals with mass organizations so
that the very leadership of these parties can be transformed through the participation of mass
organizations. And if this is true of the administration parties, this will be true of others like the
Partido ng Bayan which is now being formed. There is no question that they will be attractive to
many mass organizations. In the opposition parties to which we belong, there will be a stimulus
for us to contact mass organizations so that with their participation, the policies of such parties
can be radically transformed because this amendment will create conditions that will challenge
both the mass organizations and the political parties to come together. And the party list system
is certainly available, although it is open to all the parties. It is understood that the parties will
enter in the roll of the COMELEC the names of representatives of mass organizations affiliated
with them. So that we may, in time, develop this excellent system that they have in Europe
where labor organizations and cooperatives, for example, distribute themselves either in the
Social Democratic Party and the Christian Democratic Party in Germany, and their very
presence there has a transforming effect upon the philosophies and the leadership of those
parties.

It is also a fact well known to all that in the United States, the AFL-CIO always vote with the
Democratic Party. But the businessmen, most of them, always vote with the Republican Party,
meaning that there is no reason at all why political parties and mass organizations should not
combine, reenforce, influence and interact with each other so that the very objectives that we
set in this Constitution for sectoral representation are achieved in a wider, more lasting, and
more institutionalized way. Therefore, I support this [Monsod-Villacorta] amendment. It installs
sectoral representation as a constitutional gift, but at the same time, it challenges the sector to
rise to the majesty of being elected representatives later on through a party list system; and
even beyond that, to become actual political parties capable of contesting political power in the
wider constitutional arena for major political parties.

x x x 32 (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional
Commission. Section 3 of R.A. No. 7941 reads:

Definition of Terms. (a) 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 (COMELEC). Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does not participate in the party-list
system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to 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.

It is a national party when its constituency is spread over the geographical territory of at
least a majority of the regions. It is a regional party when its constituency is spread over
the geographical territory of at least a majority of the cities and provinces comprising the
region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special
interests and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens

who share similar physical attributes or characteristics, employment, interests or
concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral

parties or organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from
dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in
the party-list system. On the contrary, the framers of the Constitution clearly intended the major
political parties to participate in party-list elections through their sectoral wings. In fact, the
members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats,
and in the alternative the reservation of the party-list system to the sectoral groups.33 In defining
a "party" that participates in party-list elections as either "a political party or a sectoral party,"
R.A. No. 7941 also clearly intended that major political parties will participate in the party-list
elections. Excluding the major political parties in party-list elections is manifestly against the
Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot
engage in socio-political engineering and judicially legislate the exclusion of major political
parties from the party-list elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that
major political parties are allowed to establish, or form coalitions with, sectoral organizations for
electoral or political purposes. There should not be a problem if, for example, the Liberal Party
participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its
sectoral youth wing. The other major political parties can thus organize, or affiliate with, their
chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk
wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk
nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

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 elections, able to read and write, 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 until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s nominee
"wallow in poverty, destitution and infirmity"34 as there is no financial status required in the law. It
is enough that the nominee of the sectoral party/organization/coalition belongs to the
marginalized and underrepresented sectors,35 that is, if the nominee represents the fisherfolk,
he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must
be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of
party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5
of Article VI, left the determination of the number of the members of the House of
Representatives to Congress: "The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by law, x x x." The 20% allocation
of party-list representatives is merely a ceiling; party-list representatives cannot be more than
20% of the members of the House of Representatives. However, we cannot allow the continued
existence of a provision in the law which will systematically prevent the constitutionally allocated
20% party-list representatives from being filled. The three-seat cap, as a limitation to the
number of seats that a qualified party-list organization may occupy, remains a valid statutory
device that prevents any party from dominating the party-list elections. Seats for party-list
representatives shall thus be allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing
major political parties from participating in the party-list elections, directly or indirectly. Those
who voted to continue disallowing major political parties from the party-list elections joined Chief
Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the
Court is unanimous in concurring with this ponencia.

WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the

COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July
2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution
of additional party-list seats. The allocation of additional seats under the Party-List System shall
be in accordance with the procedure used in Table 3 of this Decision. Major political parties are
disallowed from participating in party-list elections. This Decision is immediately executory. No
pronouncement as to costs.

SO ORDERED.
 EN BANC

G.R. No. 128055            April 18, 2001

MIRIAM DEFENSOR SANTIAGO, petitioner,

vs.
SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND MINITA V.
CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE FIRST
DIVISION, respondents.

VITUG, J.:

The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in
ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in
connection with pending in criminal cases filed against her for alleged violation of Republic Act
No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.

The instant case arose from complaints filed by a group of employees of the Commission of
Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged
violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over the
case from investigator Gualberto dela Llana after having been constituted by the Deputy
Ombudsman for Luzon upon petitioner's request, came up with a resolution which it referred, for
approval, to the Office of the Special Prosecutor (OSP) and the Ombudsman. In his
Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the appropriate
informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the
informations for clearance; approved, forthwith, three informations were filed on even date.

In Criminal Case No. 16698 filed before the Sandiganbayan, petitioner was indicted thusly:

"That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila,
Philippines and within the jurisdiction of this Honorable Court, accused MIRIAM
DEFENSOR-SANTIAGO, a public officer, being then the Commissioner of the
Commission on Immigration and Deportation, with evident bad faith and manifest
partiality in the exercise of her official functions, did then and there willfully, unlawfully
and criminally approve the application for legalization for the stay of the following aliens:
Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu
 Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui
Xin Qiui, Wu Hong Guan Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu @ Yin Yin
Kua, Hong Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong,
Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen
Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @
Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai
Ya Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive
Order No. 324 dated April 13, 1988 which prohibits the legalization of said disqualified
aliens knowing fully well that said aliens are disqualified thereby giving unwarranted
benefits to said aliens whose stay in the Philippines was unlawfully legalized by said
accused." 1

Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and
the other for libel, were filed with the Regional Trial Court of Manila, docketed, respectively, No.
91-94555 and No. 91-94897.

Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E.
Garchitorena issued an order for the arrest of petitioner, fixing the bail at Fifteen Thousand
(P15,000.00) Pesos. Petitioner posted a cash bail without need for physical appearance as she
was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan
granted her provisional liberty until 05 June 1991 or until her physical condition would warrant
her physical appearance in court. Upon manifestation by the Ombudsman, however, that
petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued an
order setting the arraignment on 27 May 1991.

Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be
allowed provisional liberty upon a recognizance.

On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with prohibition and

Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the
Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the
petition issued a temporary restraining order.

The Sandiganbayan, thus informed, issued an order deferring petitioner's arraignment and the
consideration of her motion to cancel the cash bond until further advice from the Court.

On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the
temporary restraining order. The subsequent motion for reconsideration filed by petitioner
proved unavailing.

On 06 July 1992, in the wake of media reports announcing petitioner's intention to accept a

fellowship from the John F. Kennedy School of Government at Harvard University, the
Sandiganbayan issued an order to enjoin petitioner from leaving the country.

On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena

from the case and to defer her arraignment pending action on her motion to inhibit. On 09
November 1992, her motion was denied by the Sandiganbayan. The following day, she filed
anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary Injunction with
the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a motion for bill of
particulars with the Sandiganbayan asseverating that the names of the aliens whose
applications she purportedly approved and thereby supposedly extended undue advantage
were conspicuously omitted in the complaint.

The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset
petitioner's arraignment not later than five days from receipt of notice thereof.

On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion to
admit thirty-two amended informations. Petitioner moved for the dismissal of the 32
informations. The court, in its 11th March 1993 resolution, denied her motion to dismiss the said
informations and directed her to post bail on the criminal cases, docketed Criminal Case No.
18371-18402, filed against her.

Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R.
No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not
to disqualify its Presiding Justice, as well as its 14th March 1993 resolution admitting the 32
Amended Informations, and seeking the nullification thereof.

Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena
to cease and desist from sitting in the case, as well as from enforcing the 11th March 1993
resolution ordering petitioner to post bail bonds for the 32 amended informations, and from
proceedings with her arraignment on 12 April 1993 until the matter of his disqualification would
have been resolved by the Court.

On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and
Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32
informations were consolidated into one information under Criminal Case No. 16698.

Petitioner, then filed with the Sandiganbayan a Motion to "Redetermine Probable Cause" and to
dismiss or quash said information. Pending the resolution of this incident, the prosecution filed
on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner.

On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo
Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995.

In the interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July 1995
motion of the prosecution within fifteen (15) days from receipt thereof.

On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of

its 03rd August 1995 order which would allow the testimony of Pedellaga. The incident, later
denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on Certiorari,
entitled "Miriam Defensor-Santiago vs. Sandiganbayan," docketed G.R. No. 123792.

On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend
her. On 25 January 1996, the Sandiganbayan resolved:

"WHEREFORE, for all the foregoing, the Court hereby grants the motion under
consideration and hereby suspends the accused Miriam Defensor-Santiago from her
position as Senator of the Republic of the Philippines and from any other government
 position she may be holding at present or hereafter. Her suspension shall be for ninety
(90) days only and shall take effect immediately upon notice.

"Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate
President, Senate of the Philippines, Executive House, Taft Ave., Manila, through the
Hon. Secretary of the Senate, for the implementation of the suspension herein ordered.
The Secretary of the Senate shall inform this Court of the action taken thereon within five
(5) days from receipt hereof.

"The said official shall likewise inform this Court of the actual date of implementation of
the suspension order as well as the expiry of the ninetieth day thereof so that the same
may be lifted at that time." 2

Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a
ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic
of the Philippines, from any government position, and furnishing a copy thereof to the Senate of
the Philippines for the implementation of the suspension order.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public
official charged with violation of the provisions of Republic Act No. 3019 has both legal and
jurisprudential support. Section 13 of the statute provides:

"SECTION 13. Suspension and loss of benefits. — Any incumbent public officer against
whom any criminal prosecution under a valid information under this Act or under Title 7,
Book II of the Revised Penal Code or for any offense involving fraud upon government
or public funds or property whether as a simple or as a complex offense and in whatever
stage of execution and mode of participation, is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or
gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed against
him.

"In the event that such convicted officer, who may have already been separated from the
service, has already received such benefits he shall be liable to restitute the same to the
Government. (As amended by BP Blg. 195, March 16, 1982)."

In the relatively recent case of Segovia vs. Sandiganbayan, 3 the Court reiterated:

"The validity of Section 13, R.A. 3019, as amended — treating of the

suspension pendente lite of an accused public officer — may no longer be put at issue,
having been repeatedly upheld by this Court.

"xxx           xxx           xxx

"The provision of suspension pendente lite applies to all persons indicted upon a valid

information under the Act, whether they be appointive or elective officials; or permanent
or temporary employees, or pertaining to the career or non-career service." 4
It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension
upon determination of the validity of the information filed before it. Once the information is found
to be sufficient in form and substance, the court is bound to issue an order of suspension as a
matter of course, and there seems to be "no ifs and buts about it." 5 Explaining the nature of the
preventive suspension, the Court in the case of Bayot vs. Sandiganbayan 6 observed:

"x x x . It is not a penalty because it is not imposed as a result of judicial proceedings. In

fact, if acquitted, the official concerned shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension." 7

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the
clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has,
more than once, upheld Sandiganbayan's authority to decree the suspension of public officials
and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has
been charged. Thus, it has been held that the use of the word "office" would indicate that it
applies to any office which the officer charged may be holding, and not only the particular office
under which he stands accused. 8

En passant, while the imposition of suspension is not automatic or self-operative as the validity
of the information must be determined in a pre-suspension hearing, there is no hard and fast
rule as to the conduct thereof. It has been said that —

"'x x x . No specific rules need be laid down for such pre-suspension hearing. Suffice it to
state that the accused should be given a fair and adequate opportunity to challenge the
VALIDITY OF THE CRIMINAL PROCEEDINGS against him e.g. that he has not been
afforded the right of due preliminary investigation; that the acts for which he stands
charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery
provisions of the Revised Penal Code which would warrant his mandatory suspension
from office under section 13 of the Act; or he may present a motion to quash the
information on any of the grounds provided for in Rule 117 of the Rules of Court x x x .'

"xxx           xxx           xxx

"Likewise, he is accorded the right to challenge the propriety of his prosecution on the
ground that the acts for which he is charged do not constitute a violation of Rep. Act
3019, or of the provisions on bribery of the Revised Penal Code, and the right to present
a motion to quash the information on any other grounds provided in Rule 117 of the
Rules of court.

"However, a challenge to the validity of the criminal proceedings on the ground that the
acts for which the accused is charged do not constitute a violation of the provisions of
Rep. Act 3019, or of the provisions on bribery of the revised Penal Code, should be
treated only in the same manner as a challenge to the criminal proceeding by way of a
motion to quash on the ground provided in Paragraph (a), Section 2 of Rule 117 of the
Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a
resolution of the challenge to the validity of the criminal proceeding, on such ground,
should be limited to an inquiry whether the facts alleged in the information, if
 hypothetically admitted, constitute the elements of an offense punishable under Rep. Act
3019 or the provisions on bribery of the Revised Penal Code." 9

The law does not require that the guilt of the accused must be established in a presuspension
proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of culpability against him, (2) the gravity of the
offense charged, or (3) whether or not his continuance in office could influence the witnesses or
pose a threat to the safety and integrity of the records and other evidence before the court could
have a valid basis in decreeing preventive suspension pending the trial of the case. All it
secures to the accused is adequate opportunity to challenge the validity or regularity of the
proceedings against him, such as, that he has not been afforded the right to due preliminary
investigation, that the acts imputed to him do not constitute a specific crime warranting his
mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the
information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the
Revised Rules on Criminal Procedure. 10

The instant petition is not the first time that an incident relating to petitioner's case before the
Sandiganbayan has been brought to this Court. In previous occasions, the Court has been
called upon to resolve several other matters on the subject. Thus: (1) In Santiago vs.
Vasquez, 11 petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal Case
No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez, 12 petitioner
sought the nullification of the hold departure order issued by the Sandiganbayan via a "Motion
to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for
Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set
Pending Incident for Hearing; (3) in Santiago vs. Garchitorena, 13 petitioner sought the
nullification of the resolution, dated 03 March 1993, in Criminal Case No. 16698 of the
Sandiganbayan (First Division) and to declare Presiding Justice Garchitorena disqualified from
acting in said criminal case, and the resolution, dated 14 March 1993, which deemed as "filed"
the 32 amended informations against her; and (4) in Miriam Defensor Santiago vs.
Sandiganbayan, 14 petitioner assailed the denial by the Sandiganbayan of her motion for
reconsideration from its 03rd August 1995 order allowing the testimony of Pedellaga. In one of
these cases, 15 the Court declared:

"We note that petitioner had previously filed two petitions before us involving Criminal
Case No. 16698 (G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner has not
explained why she failed to raise the issue of the delay in the preliminary investigation
and the filing of the information against her in those petitions. A piece-meal presentation
of issues, like the splitting of causes of action, is self-defeating.

"Petitioner next claims that the Amended informations did not charge any offense
punishable under Section 3 (e) of RA. No. 3019 because the official acts complained
therein were authorized under Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation adopted the policy of approving
applications for legalization of spouses and unmarried, minor children of "qualified
aliens" even though they had arrived in the Philippines after December 31, 1983. She
concludes that the Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).
 "In a motion to quash, the accused the accused admits hypothetically the allegations of
fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner
admitted hypothetically in her motion that:

(1) She was a public officer,

(2) She approved the application for legalization of the stay of aliens, who arrived
in the Philippines after January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in 'evident bad faith and manifest partiality in the execution of her
official functions.'

"The foregoing allegations of fact constitute the elements of the offense defined in
Section 3 (e) of R.A. No. 3019." 16

The pronouncement, upholding the validity of the information filed against petitioner, behooved
Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive
suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of
Congress to discipline its own ranks under the Constitution which provides that each —

"x x x . house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend
or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty
days." 17

The suspension contemplated in the above constitutional provision is a punitive measure that is
imposed upon determination by the Senate or the House of Representatives, as the case may
be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. vs.
Sandiganbayan, et al., 18 the Court affirmed the order of suspension of Congressman Paredes
by the Sandiganbayan, despite his protestations on the encroachment by the court on the
prerogatives of Congress. The Court ruled:

"x x x . Petitioner's invocation of Section 16 (3), Article VI of the Constitution — which

deals with the power of each House of Congress inter alia to 'punish its Members for
disorderly behavior,' and 'suspend or expel a Member' by a vote of two-thirds of all its
Members subject to the qualification that the penalty of suspension, when imposed,
should not exceed sixty days — is unavailing, as it appears to be quite distinct from the
suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary,
preventive measure, prescinding from the fact that the latter is not being imposed on
petitioner for misbehavior as a Member of the House of Representatives."

The doctrine of separation of powers by itself may not be deemed to have effectively excluded
members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply
recognizes each of the three co-equal and independent, albeit coordinate, branches of the
government — the Legislative, the Executive and the Judiciary — has exclusive prerogatives
and cognizance within its own sphere of influence and effectively prevents one branch from
unduly intruding into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987
Constitution, empowers the Court to act not only in the settlement of "actual controversies
involving rights which are legally demandable and enforceable," but also in the determination of
"whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. The provision
allowing the Court to look into any possible grave abuse of discretion committed by any
government instrumentality has evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the
term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment
amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair
internal to either of Congress or the Executive, the Court subscribes to the view 19 that unless an
infringement of any specific Constitutional proscription thereby inheres the Court should not
deign substitute its own judgment over that of any of the other two branches of government. It is
an impairment or a clear disregard of a specific constitutional precept or provision that can
unbolt the steel door for Judicial intervention. If any part of the Constitution is not, or ceases to
be, responsive to contemporary needs, it is the people, not the Court, who must promptly react
in the manner prescribed by the Charter itself.

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that,
therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension
order.

Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First
Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court,
nevertheless, deems it appropriate to render this decision for future guidance on the significant
issue raised by petitioner.

WHEREFORE, the instant petition for certiorari is DISMISSED. No costs.

SO ORDERED.
 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 letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and
opportunity to study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are
unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and
arrangements as well as notices to all resource persons were completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of
the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the
NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on
the contract agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle
of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the
Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with

Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the
separation of powers between co-equal branches of the government, all heads of departments
of the Executive Branch of the government shall secure the consent of the President prior to
appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental
to the operation of government and rooted in the separation of powers under the Constitution
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the
Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public
Officials and Employees shall not use or divulge confidential or classified information officially
known to them by reason of their office and not made available to the public to prejudice the
public interest.

Executive privilege covers all confidential or classified information between the President and
the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by
this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security
should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R.
No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads are
covered by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in
the judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such
other officers who in the judgment of the Chief of the PNP are covered by the executive
privilege;

Senior national security officials who in the judgment of the National Security Adviser are
covered by the executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials
enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing
before either House of Congress to ensure the observance of the principle of separation of
powers, adherence to the rule on executive privilege and respect for the rights of public officials
appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita
a copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department
invited to appear at the meeting [regarding the NorthRail project] will not be able to attend the
same without the consent of the President, pursuant to [E.O. 464]" and that "said officials have
not secured the required consent from the President." On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator
Biazon, Chairperson of the Committee on National Defense and Security, informing him "that
per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the
[AFP] is authorized to appear before any Senate or Congressional hearings without seeking a
written approval from the President" and "that no approval has been granted by the President to
any AFP officer to appear before the public hearing of the Senate Committee on National
Defense and Security scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through,
with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyo’s order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their
military posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary
Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following
government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro
Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief
State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez,
Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding,
DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose
Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes
sent personal regrets likewise citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O.
464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members
Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino,
Courage, an organization of government employees, and Counsels for the Defense of Liberties
(CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all
claiming to have standing to file the suit because of the transcendental importance of the issues
they posed, pray, in their petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive
Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to
impose sanctions on officials who appear before Congress due to congressional summons.
Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from
fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its
right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that
E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges
that the tenure of its members in public office is predicated on, and threatened by, their
submission to the requirements of E.O. 464 should they be summoned by Congress; and
CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a
citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his
petition that E.O. 464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition
of 17 legal resource non-governmental organizations engaged in developmental lawyering and
work with the poor and marginalized sectors in different parts of the country, and as an
organization of citizens of the Philippines and a part of the general public, it has legal standing
to institute the petition to enforce its constitutional right to information on matters of public
concern, a right which was denied to the public by E.O. 464,13 prays, that said order be declared
null and void for being unconstitutional and that respondent Executive Secretary Ermita be
ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in
the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material
injury, as it has already sustained the same with its continued enforcement since it directly
interferes with and impedes the valid exercise of the Senate’s powers and functions and
conceals information of great public interest and concern, filed its petition for certiorari and
prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into
the Philippine Senate and House of Representatives, filed a similar petition for certiorari and
prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464
because it hampers its legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be
resolved to avert a constitutional crisis between the executive and legislative branches of the
government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
Senga for him and other military officers to attend the hearing on the alleged wiretapping
scheduled on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8,
2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public hearing" and that "they will attend
once [their] request is approved by the President." As none of those invited appeared, the
hearing on February 10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and
the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under
the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and
December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA
Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director
Norlito R. Gicana,17 and those from the Department of Budget and Management18 having
invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and
Department of Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of appropriate clearance from the
President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional
right to be informed on matters of public interest, filed their petition for certiorari and prohibition,
docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents
from implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following
substantive issues were ventilated: (1) whether respondents committed grave abuse of
discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of
the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21,
Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is
an actual case or controversy that calls for judicial review was not taken up; instead, the parties
were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its
face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four
instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the
Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7,
2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on
March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it
would no longer file its memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and

3. Whether respondents have committed grave abuse of discretion when they

implemented E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of
whether the requisites for a valid exercise of the Court’s power of judicial review are present is
in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have standing to challenge the validity of
the subject act or issuance; otherwise stated, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659,
169660 and 169667 make it clear that they, adverting to the non-appearance of several officials
of the executive department in the investigations called by the different committees of the
Senate, were brought to vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions.
They maintain that Representatives Ocampo et al. have not shown any specific prerogative,
power, and privilege of the House of Representatives which had been effectively impaired by
E.O. 464, there being no mention of any investigation called by the House of Representatives or
any of its committees which was aborted due to the implementation of E.O. 464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such
interest falls short of that required to confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a
personal or direct injury by reason of the issuance of E.O. 464, the Senate and its individual
members are not the proper parties to assail the constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin42 and

Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered
a proper party, one must have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent
public decision-making in a democratic system, but more especially for sound legislation45 is not
disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access
information that is crucial to law-making.46 Verily, the Senate, including its individual members,
has a substantial and direct interest over the outcome of the controversy and is the proper party
to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate
the prerogative, powers and privileges vested by the Constitution in their office and are allowed
to sue to question the validity of any official action which they claim infringes their prerogatives
as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino
(Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano
(Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of
E.O. 464, the absence of any claim that an investigation called by the House of Representatives
or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it
being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and
duties as members of Congress to conduct investigation in aid of legislation and conduct
oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained
three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit the nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions,
passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of
citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its
lawyer members,50 invoke their constitutional right to information on matters of public concern,
asserting that the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional 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.55 In fine, PDP-Laban’s alleged interest
as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials
invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that
President Arroyo has actually withheld her consent or prohibited the appearance of the invited
officials.56 These officials, they claim, merely communicated to the Senate that they have not yet
secured the consent of the President, not that the President prohibited their
attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on
September 28, 2005, respondents claim that the instruction not to attend without the President’s
consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that
the President will abuse its power of preventing the appearance of officials before Congress,
and that such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents’ assertion that the President has not withheld her consent or
prohibited the appearance of the officials concerned immaterial in determining the existence of
an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require
either a deliberate withholding of consent or an express prohibition issuing from the President in
order to bar officials from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials
invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for
any further event before considering the present case ripe for adjudication. Indeed, it would be
sheer abandonment of duty if this Court would now refrain from passing on the constitutionality
of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress,
deprives Congress of the information in the possession of these officials. To resolve the
question of whether such withholding of information violates the Constitution, consideration of
the general power of Congress to obtain information, otherwise known as the power of inquiry,
is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the

Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees
may conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
(Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that,
in the latter, it vests the power of inquiry in the unicameral legislature established therein – the
Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v.
Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized that
the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista
and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a
leading witness in the controversy, was called to testify thereon by the Senate. On account of
his refusal to answer the questions of the senators on an important point, he was, by resolution
of the Senate, detained for contempt. Upholding the Senate’s power to punish Arnault for
contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress
with power to make investigations and exact testimony to the end that it may exercise its
legislative functions advisedly and effectively, such power is so far incidental to the legislative
function as to be implied. In other words, the power of inquiry – with process to enforce it – is an
essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate
wisely or effectively in the absence of information respecting the conditions which the legislation
is intended to affect or change; and where the legislative body does not itself possess the
requisite information – which is not infrequently true – recourse must be had to others who do
possess it. Experience has shown that mere requests for such information are often unavailing,
and also that information which is volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring
supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be
deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with
the power to legislate.60 The matters which may be a proper subject of legislation and those
which may be a proper subject of investigation are one. It follows that the operation of
government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in
Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure
of public funds of which Congress is the guardian, the transaction, the Court held, "also involved
government agencies created by Congress and officers whose positions it is within the power of
Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the
most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by
parity of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to
the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to
avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed statute which prompted the
need for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less
room for speculation on the part of the person invited on whether the inquiry is in aid of
legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power
of inquiry. The provision requires that the inquiry be done in accordance with the Senate or
House’s duly published rules of procedure, necessarily implying the constitutional infirmity of an
inquiry conducted without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an imposition that
obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the
persons affected, even if they belong to the executive branch. Nonetheless, there may be
exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of
abuse of the legislative power of inquiry might be established, resulting in palpable violations of
the rights guaranteed to members of the executive department under the Bill of Rights. In such
instances, depending on the particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power
of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information
from the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold information from Congress, the
courts, and ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims
of varying kinds.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 degrees of success, in the context
of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such nature that
its disclosure would subvert crucial military or diplomatic objectives. Another variety is the
informer’s privilege, or the privilege of the Government not to disclose the identity of persons
who furnish information of violations of law to officers charged with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental
documents reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to
resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of
the unique role and responsibilities of the executive branch of our government. Courts ruled
early that the executive had a right to withhold documents that might reveal military or state
secrets. The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold information
related to pending investigations. x x x"69 (Emphasis and underscoring supplied)

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the
executive from disclosure requirements applicable to the ordinary citizen or organization where
such exemption is necessary to the discharge of highly important executive responsibilities
involved in maintaining governmental operations, and extends not only to military and diplomatic
secrets but also to documents integral to an appropriate exercise of the executive’ domestic
decisional and policy making functions, that is, those documents reflecting the frank expression
necessary in intra-governmental advisory and deliberative communications.70 (Emphasis and
underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that
it would be considered privileged in all instances. For in determining the validity of a claim of
privilege, the question that must be asked is not only whether the requested information falls
within one of the traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974.
In issue in that case was the validity of President Nixon’s claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents
relating to the Watergate investigations. The claim of privilege was based on the President’s
general interest in the confidentiality of his conversations and correspondence. The U.S. Court
held that while there is no explicit reference to a privilege of confidentiality in the U.S.
Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a
President’s powers. The Court, nonetheless, rejected the President’s claim of privilege, ruling
that the privilege must be balanced against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to clarify that it was not there addressing the
issue of claims of privilege in a civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are
rare.73 Despite frequent assertion of the privilege to deny information to Congress, beginning
with President Washington’s refusal to turn over treaty negotiation records to the House of
Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S.
Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year
as Nixon, recognized the President’s privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the claim of privilege against the
interest that would be served by disclosure to the Committee. Ruling that the balance favored
the President, the Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77 Almonte used the term in reference to the same privilege subject of Nixon. It quoted
the following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences,

like the claim of confidentiality of judicial deliberations, for example, has all the values to which
we accord deference for the privacy of all citizens and, added to those values, is the necessity
for protection of the public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The privilege is fundamental to the
operation of government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information
which the government may withhold from the public, thus acknowledging, in substance if not in
name, that executive privilege may be claimed against citizens’ demands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding
that there is a "governmental privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other national security matters."80 The same case held that
closed-door Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information
does not extend to matters recognized as "privileged information under the separation of
powers,"82 by which the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that information on military and
diplomatic secrets and those affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused were exempted
from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in
which it is made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section
3, the coverage of department heads under Section 1 is not made to depend on the department
heads’ possession of any information which might be covered by executive privilege. In fact, in
marked contrast to Section 3 vis-à-vis Section 2, there is no reference to executive privilege at
all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of
the Constitution on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto. When the security of the
State or the public interest so requires and the President so states in writing, the appearance
shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22
of Article VI. Section 22 which provides for the question hour must be interpreted vis-à-vis
Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid
of legislation." As the following excerpt of the deliberations of the Constitutional Commission
shows, the framers were aware that these two provisions involved distinct functions of
Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear
before the House of Representatives or before the Senate. I have a particular problem in this
regard, Madam President, because in our experience in the Regular Batasang Pambansa – as
the Gentleman himself has experienced in the interim Batasang Pambansa – one of the most
competent inputs that we can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but
if they do not come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact
that the Cabinet ministers may refuse to come to the House of Representatives or the Senate
[when requested under Section 22] does not mean that they need not come when they are
invited or subpoenaed by the committee of either House when it comes to inquiries in aid of
legislation or congressional investigation. According to Commissioner Suarez, that is allowed
and their presence can be had under Section 21. Does the gentleman confirm this, Madam
President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can
be held in contempt of the House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in
aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department heads discretionary in the
question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee
on Style, precisely in recognition of this distinction, later moved the provision on question hour
from its original position as Section 20 in the original draft down to Section 31, far from the
provision on inquiries in aid of legislation. This gave rise to the following exchange during the
deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go,
Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in
terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its
own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put
Question Hour as Section 31. I hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely
as a complement to or a supplement of the Legislative Inquiry. The appearance of the members
of Cabinet would be very, very essential not only in the application of check and balance but
also, in effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and
Maambong proceeded from the same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners understood that the power to conduct
inquiries in aid of legislation is different from the power to conduct inquiries during the question
hour. Commissioner Davide’s only concern was that the two provisions on these distinct powers
be placed closely together, they being complementary to each other. Neither Commissioner
considered them as identical functions of Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted
exchange, Commissioner Maambong’s committee – the Committee on Style – shared the view
that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the
other hand, was speaking in his capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite
meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the
other ministers accountable for their acts and the operation of the government,85 corresponding
to what is known in Britain as the question period. There was a specific provision for a question
hour in the 1973 Constitution86 which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that Constitution, where the
ministers are also members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability

of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot
be terminated before their term expired, the Prime Minister and the Cabinet remain in office only
as long as they enjoy the confidence of the National Assembly. The moment this confidence is
lost the Prime Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during
the question hour in the present Constitution so as to conform more fully to a system of
separation of powers.88 To that extent, the question hour, as it is presently understood in this
jurisdiction, departs from the question period of the parliamentary system. That department
heads may not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all circumstances. In fact, in
light of the absence of a mandatory question period, the need to enforce Congress’ right to
executive information in the performance of its legislative function becomes more imperative. As
Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is
that the Congress has the right to obtain information from any source – even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the
situation which prevails in a parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to be carried out. The
absence of close rapport between the legislative and executive branches in this country,
comparable to those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce made reliance by
the Congress upon its right to obtain information from the executive essential, if it is intelligently
to perform its legislative tasks. Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system such as ours becomes a power
devoid of most of its practical content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should
not be considered as pertaining to the same power of Congress. One specifically relates to the
power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may
be used for legislation, while the other pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the
President to whom, as Chief Executive, such department heads must give a report of their
performance as a matter of duty. In such instances, Section 22, in keeping with the separation
of powers, states that Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21,
the appearance is mandatory for the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned
from the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section
21 and the lack of it under Section 22 find their basis in the principle of separation of powers.
While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power
of Congress to legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power — the
President on whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of government which is sanctioned
by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof
is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the
Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the
provision of said Section 22 of Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as much as possible, in a way that will render it
constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their
part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of

legislation. Congress is not bound in such instances to respect the refusal of the department
head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by
the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration
is broad. It covers all senior officials of executive departments, all officers of the AFP and the
PNP, and all senior national security officials who, in the judgment of the heads of offices
designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the
PNP, and the National Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President.
Given the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it is
evident that under the rule of ejusdem generis, the determination by the President under this
provision is intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed
above, is properly invoked in relation to specific categories of information and not to categories
of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be
read as an abbreviated way of saying that the person is in possession of information which is, in
the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court
shall thus proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is
"covered by the executive privilege," such official is subjected to the requirement that he first
secure the consent of the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means nothing more than that
the President may reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then
becomes the basis for the official’s not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of
office authorized by the President, has determined that the requested information is privileged,
and that the President has not reversed such determination. Such declaration, however, even
without mentioning the term "executive privilege," amounts to an implied claim that the
information is being withheld by the executive branch, by authority of the President, on the basis
of executive privilege. Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate
President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It
reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the
Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m.,
please be informed that officials of the Executive Department invited to appear at the meeting
will not be able to attend the same without the consent of the President, pursuant to Executive
Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of
Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For
Other Purposes". Said officials have not secured the required consent from the President.
(Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials
are being requested to be resource persons falls under the recognized grounds of the privilege
to justify their absence. Nor does it expressly state that in view of the lack of consent from the
President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter
assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been made, by the designated head of
office or the President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such determination has been
made, the same must be deemed implied. Respecting the statement that the invited officials
have not secured the consent of the President, it only means that the President has not
reversed the standing prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim
of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in
the possession of the executive may validly be claimed as privileged even against Congress.
Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information cannot be pried
open by a co-equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested parties, is essential to
protect the independence of decision-making of those tasked to exercise Presidential,
Legislative and Judicial power. This is not the situation in the instant case.91 (Emphasis and
underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining
the ground invoked therefor and the particular circumstances surrounding it, there is, in an
implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as
demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis
thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-
door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are
covered by the privilege under the challenged order, Congress is left to speculate as to which
among them is being referred to by the executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the phrase "confidential or
classified information between the President and the public officers covered by this executive
order."

Certainly, Congress has the right to know why the executive considers the requested
information privileged. It does not suffice to merely declare that the President, or an authorized
head of office, has determined that it is so, and that the President has not overturned that
determination. Such declaration leaves Congress in the dark on how the requested information
could be classified as privileged. That the message is couched in terms that, on first impression,
do not seem like a claim of privilege only makes it more pernicious. It threatens to make
Congress doubly blind to the question of why the executive branch is not providing it with the
information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed
nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of
privilege, lodged by the head of the department which has control over the matter, after actual
personal consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee
on Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs’ needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing
operation. In stating its objection to claimant’s interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant would inhibit the free expression of opinion that
non-disclosure is designed to protect. The government has not shown – nor even alleged – that
those who evaluated claimant’s product were involved in internal policymaking, generally, or in
this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon
which the privilege is based must be established. To find these interrogatories objectionable,
this Court would have to assume that the evaluation and classification of claimant’s products
was a matter of internal policy formulation, an assumption in which this Court is unwilling to
indulge sua sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
‘precise and certain’ reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description
of the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has
little more than its sua sponte speculation with which to weigh the applicability of the claim. An
improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a
claim was made by the proper executive as Reynolds requires, the Court can not recognize the
claim in the instant case because it is legally insufficient to allow the Court to make a just and
reasonable determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents from outside
scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v.
U.S:102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that ‘if (petitioner) had
legitimate reasons for failing to produce the records of the association, a decent respect for the
House of Representatives, by whose authority the subpoenas issued, would have required that
(he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would
have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. ‘To deny the Committee the opportunity to consider the
objection or remedy is in itself a contempt of its authority and an obstruction of its processes.
His failure to make any such statement was "a patent evasion of the duty of one summoned to
produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim
with such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the
privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he
would incriminate himself – his say-so does not of itself establish the hazard of incrimination. It
is for the court to say whether his silence is justified, and to require him to answer if ‘it clearly
appears to the court that he is mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection which the privilege
is designed to guarantee. To sustain the privilege, it need only be evident from the implications
of the question, in the setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious disclosure
could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per
se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for
the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not
given her consent. It is woefully insufficient for Congress to determine whether the withholding
of information is justified under the circumstances of each case. It severely frustrates the power
of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding
only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege.
It does not purport to be conclusive on the other branches of government. It may thus be
construed as a mere expression of opinion by the President regarding the nature and scope of
executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the
President can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
that a certain information is privileged, such determination is presumed to bear the President’s
authority and has the effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of privilege by mere
silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of
the executive branch,105 or in those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities.106 The doctrine of executive privilege
is thus premised on the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by definition, an exemption from
the obligation to disclose information, in this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must
state that the authority is "By order of the President," which means that he personally consulted
with her. The privilege being an extraordinary power, it must be wielded only by the highest
official in the executive hierarchy. In other words, the President may not authorize her
subordinates to exercise such power. There is even less reason to uphold such authorization in
the instant case where the authorization is not explicit but by mere silence. Section 3, in relation
to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in
his own judgment, might be covered by executive privilege, he must be afforded reasonable
time to inform the President or the Executive Secretary of the possible need for invoking the
privilege. This is necessary in order to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after
the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the official to appear before
Congress and may then opt to avail of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent
of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by
Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such
authorization is partly motivated by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive
officials in the hearings conducted by it, and not with the demands of citizens for information
pursuant to their right to information on matters of public concern. Petitioners are not amiss in
claiming, however, that what is involved in the present controversy is not merely the legislative
power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public
concern. For one, the demand of a citizen for the production of documents pursuant to his right
to information does not have the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however,
any executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation,
is presumed to be a matter of public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions on the matter before Congress
— opinions which they can then communicate to their representatives and other government
officials through the various legal means allowed by their freedom of expression. Thus holds
Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the discussion are aware of the
issues and have access to information relating thereto can such bear fruit.107 (Emphasis and
underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislature’s power
of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same
is exempt from the need for publication. On the need for publishing even those statutes that do
not directly apply to people in general, Tañada v. Tuvera states:

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely cannot be said that such a
law does not affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper party, even in courts of
justice.108 (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the
challenged order must be covered by the publication requirement. As explained above, E.O.
464 has a direct effect on the right of the people to information on matters of public concern. It
is, therefore, a matter of public interest which members of the body politic may question before
this Court. Due process thus requires that the people should have been apprised of this
issuance before it was implemented.

Conclusion

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 nobles, and replace it with a presumption in
favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power
of our legislature to inquire into the operations of government, but we shall have given up
something of much greater value – our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order
No. 464 (series of 2005), "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," are declared VOID. Sections 1
and 2(a) are, however, VALID.

SO ORDERED.