101 OFFICE OF ADMINISTRATIVE SERVICES- AUTHOR:

OFFICE OF THE COURT ADMINISTRATOR NOTES: The Office of the Court Administrator (OCA) filed
vs. the present administrative case against Judge Ignacio B.
JUDGE IGNACIO B. MACARINE, Municipal Circuit Macarine (respondent) for violation of OCA Circular No.
Trial Court, Gen. Luna, Surigao del Norte 49-2003.
A.M. No. MTJ-10-1770. July 18, 2012
TOPIC:
PONENTE:
FACTS:
1. OCA Circular No. 49-2003 requires that all foreign travels of judges and court personnel, regardless of the number
of days, must be with prior permission from the Court. A travel authority must be secured from the OCA Judges
must submit the following requirements: (1) application or letter-request addressed to the Court Administrator
stating the purpose of the travel abroad; (2) application for leave covering the period of the travel abroad,
favorably recommended by the Executive Judge; and (3) certification from the Statistics Division, Court
Management Office, OCA as to the condition of the docket.
2. The complete requirements should be submitted to and received by the OCA at least two weeks before the
intended time of travel. No action shall be taken on requests for travel authority with incomplete requirements.
3. Judges and personnel who shall leave the country without travel authority issued by the OCA shall be subject to
disciplinary action.
4. The respondent wrote Court Administrator Justice Jose Portugal Perez, requesting for authority to travel to
Hongkong with his family for the period of September 10 - 14, 2009 where he would celebrate his 65th birthday.
4.1 The respondent stated that his travel abroad shall be charged to his annual forced leave.
4.2 However, he did not submit the corresponding application for leave. For his failure to submit the complete
requirements, his request for authority to travel remained unacted upon.
4.3 The respondent proceeded with his travel abroad without the required travel authority from the OCA.
5. The respondent was informed by the OCA that his leave of absence for the period of September 9-15, 2009 had
been disapproved and his travel considered unauthorized by the Court. His absences shall not be deducted from his
leave credits but from his salary corresponding to the 7 days that he was absent, pursuant to Section 50 of the
Omnibus Rules on Leave.
6. In his letter-explanation, the respondent narrated that his daughter, a nurse working in New Jersey, USA, gave him
a trip to Hongkong as a gift for his 65th birthday. In the first week of Septemb er 2009, he received a call from his
daughter that she had already booked him, together with his wife and two sons, in a hotel in Hongkong from
September 13 to 15, 2009. They flew in to Manila from Surigao City on September 9, 2009, intending to prepare
the necessary papers for his authority to travel at the Supreme Court the following day. However, sensing time
constraint and thinking of the futility of completing the requirements before their scheduled flight, he opted not to
immediately complete the requirements and simply went ahead with their travel abroad. He thought of submitting
his compliance upon his return to Manila. He acknowledged his mistake and regretted his failure to comply with
OCA Circular No. 49-2003. He promised not to commit the same infraction again. He further requested for
reconsideration of the OCA’s intended action to deduct his salary corresponding to the 7 days that he was absent,
instead of charging his absences to his leave credits.
7. OCA found the respondent guilty of violation of OCA Circular No. 49-2003 for traveling out of the country
without filing the necessary application for leave and without first securing a travel authority from the Court.
ISSUE(S):
Whether or not there exists a violation to the right to travel.
HELD:
No.
Dispositive: WHEREFORE, respondent Judge Ignacio B. Macarine, Municipal Circuit Trial Court, Gen. Luna, Surigao
del Norte, is hereby given the ADMONITION that he acted irresponsibly when he opted not to immediately secure a travel
authority and is saved only from the full force that his violation carries by the attendant mitigating circumstances. He is
also WARNED that the commission of a similar violation in the future will merit a more severe penalty. The
recommendation of the Office of the Court Administration that his absences, which were unauthorized, shall not be
deducted from his leave credits but from his salary is hereby APPROVED.
RATIO:
True, the right to travel is guaranteed by the Constitution. However, the exercise of such right is not absolute. Section 6,
Article III of the 1987 Constitution allows restrictions on one’s right to travel provided that such restriction is in the
interest of national security, public safety or public health as may be provided by law. This, however, should by no means
be construed as limiting the Court’s inherent power of administrative supervision over lower courts. OCA Circular No. 49-
2003 does not restrict but merely regulates, by providing guidelines to be complied by judges and court personnel, before
they can go on leave to travel abroad. To "restrict" is to restrain or prohibit a person from doing something; to "regulate" is
to govern or direct according to rule.

To ensure management of court dockets and to avoid disruption in the administration of justice, OCA Circular No. 49-
2003 requires a judge who wishes to travel abroad to submit, together with his application for leave of absence duly
recommended for approval by his Executive Judge, a certification from the Statistics Division, Court Management Office
of the OCA, as to the condition of his docket, based on his Certificate of Service for the month immediately preceding the
date of his intended travel, that he has decided and resolved all cases or incidents within three (3) months from date of
submission, pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution.

For traveling abroad without having been officially allowed by the Court, the respondent is guilty of violation of OCA
Circular No. 49-2003. Under Section 9(4), Rule 140 of the Revised Rules of Court, violation of Supreme Court directives
and circular is considered a less serious charge and, therefore, punishable by suspension from office without salary and
other benefits for not less than one (1) month nor more than three (3) months; or a fine of more than P10,000.00 but not
exceeding P20,000.00.

Section 53, Rule IV of the Revised Rules on Administrative Cases in the Civil Service grants the disciplining authority the
discretion to consider mitigating circumstances in the imposition of the proper penalty. The Court had in several instances
refrained from imposing the actual penalties in the presence of mitigating facts, such as the employee’s length of service,
acknowledgement of his or her infractions and feelings of remorse for the same, advanced age, family circumstances, and
other humanitarian and equitable considerations.

In the present case, the respondent, after learning that his daughter had already booked him and his family in a hotel in
Hongkong, immediately went to Manila to secure his travel authority from the Court. However, with the short period of
time from their arrival in Manila on September 9, 2009 up to the time of their booking in Hongkong from September 13 to
15, 2009, he was pressed for time and opted not to complete the required travel authority, with the intention of securing
one after his travel. The respondent regretted his failure to comply with the requirements of OCA Circular No. 49 -2003.
He acknowledged his mistake and promised not to commit the same infraction in the future.

We consider the outlined circumstances as mitigating. Following judicial precedents, the respondent deserves some degree
of leniency in imposing upon him the appropriate penalty.
102 B/GEN. (RET.) FRANCISCO V.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo
GUDANI AND LT. COL.ALEXANDER F. enjoining them and other military officers from testifying before Congress without the
BALUTAN, Petitioners v. LT./GEN. President’s consent. Petitioners also pray for injunctive relief against a pending preliminary
GENEROSO S. SENGA et al., Respondents. investigation against them, in preparation for possible court-martial proceedings, initiated within
the military justice system in connection with petitioners’ violation of the aforementioned directive.
G.R. No. 170165 August 15, 2006
PONENTE: Tinga, J. SC: The solicited writs of certiorari and prohibition do not avail; the petition must be denied.

FACTS:
The petitioners are high-ranking officers of the AFP. At the time of the subject incidents, both Gen. Gudani and Col.
Balutan were assigned to the PMA in Baguio City, the former as the PMA Assistant Superintendent, and the latter as the
Assistant Commandant of Cadets.

On 22 September 2005, Senator Rodolfo Biazon invited several senior officers of the AFP to appear at a public hearing
before the Senate Committee on National Defense and Security scheduled on 28 September 2005. The hearing was
scheduled after topics concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of
massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of COMELEC, COMELEC Commissioner Virgilio Garcillano. At the time of the
2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, of Joint Task Force Ranao
by the AFP Southern Command. Joint Task Force Ranao was tasked with the maintenance of peace and order during the
2004 elections in the provinces of Lanao del Norte and Lanao del Sur.

Gen. Gudani, Col. Balutan, and AFP Chief of Staff Gen. Senga were among the several AFP officers who received a letter
invitation from Sen. Biazon to attend the said hearing.

On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing scheduled
for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that some of the invited
officers also could not attend as they were attending to other urgent operational matters. By this time, both Gen. Gudani
and Col. Balutan had already departed Baguio for Manila to attend the hearing. Then on the evening of 27 September
2005, at around 10:10 p.m., a message was transmitted to the PMA Superintendent from the office of Gen. Senga,
stating as follows:

PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY
CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND
LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY

The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no approval has been
granted by the President to any AFP officer to appear before the hearing scheduled on that day. Nonetheless, both Gen.
Gudani and Col. Balutan were present as the hearing started, and they both testified as to the conduct of the 2004
elections.

The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional
information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of the AFP
Command Center had attempted to deliver the radio message to Gen. Gudani’s residence in a subdivision in Parañaque
City late in the night of 27 September 2005, but they were not permitted entry by the subdivision guards. The next day, 28
September 2005, shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon sent earlier that day
was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani,
who replied that he already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone and
asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to
inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take Gen. Senga’s call.

A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a
statement which noted that the two had appeared before the Senate Committee in spite of the fact that a guidance has been
given that a Presidential approval should be sought prior to such an appearance; that such directive was in keeping with the
time honored principle of the Chain of Command; and that the two officers disobeyed a legal order, in violation of
A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial
proceedings x x x Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then.
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order
No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the executive department including the military
establishment from appearing in any legislative inquiry without her approval. (The SC subsequently ruled on the
constitutionality of the said executive order in Senate v. Ermita.)

In the meantime, on 30 September 2005, petitioners were directed by General Senga to appear before the Office of the
Provost Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both
petitioners invoked their right to remain silent. The following day, Gen. Gudani was compulsorily retired from military
service, having reached the age of 56. In an Investigation Report, the OPMG recommended that petitioners be charged
with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on conduct
prejudicial to the good order and military discipline. As recommended, the case was referred to a Pre-Trial Investigation
Officer (PTIO) preparatory to trial by the General Court Martial (GCM).

It was from these premises that the present petition for certiorari and prohibition was filed, particularly seeking that (1)
the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying before Congress without
her prior approval be declared unconstitutional; (2) the charges stated in the charge sheets against petitioners be quashed;
and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or
orders, be permanently enjoined from proceeding against petitioners, as a consequence of their having testified before the
Senate on 28 September 2005.

Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a gag order, which violates the principle of separation of powers in
government as it interferes with the investigation of the Senate Committee conducted in aid of legislation. They also
equate the gag order with culpable violation of the Constitution, particularly in relation to the publics constitutional
right to information and transparency in matters of public concern. Plaintively, petitioners claim that the Filipino
people have every right to hear the [petitioners’] testimonies, and even if the gag order were unconstitutional, it still was
tantamount to the crime of obstruction of justice. Petitioners further argue that there was no law prohibiting them from
testifying before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct inquiries
in aid of legislation.

ISSUE: WON the President may prevent a member of the armed forces from testifying before a legislative inquiry?

HELD: Yes. We hold that the President has constitutional authority to do so, by virtue of her power as commander-
in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. However,
the ability of the President to prevent military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive’s power as commander-in-chief to control the actions and speech of members of
the armed forces. The President’s prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.
RATIO:
1. It has to be acknowledged as a general principle that AFP personnel of whatever rank are liable under military law for
violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the Court to
decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.

Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate v Ermita on the present petition.
Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464, but instead, they
were charged for violating the direct order of Gen. Senga not to appear before the Senate Committee, an order that
stands independent of the executive order. Distinctions are called for, since Section 2(b) of E.O. 464 listed generals and
flag officers of the AFP and such other officers who in the judgment of the Chief of Staff are covered by the executive
privilege, as among those public officials required in Section 3 of E.O. 464 to secure prior consent of the President prior t o
appearing before either House of Congress. The Court in Senate declared both Section 2(b) and Section 3 void and the
impression may have been left following Senate that it settled as doctrine, that the President is prohibited from requiring
military personnel from attending congressional hearings without having first secured prior presidential consent. That
impression is wrong.

Senate turned on the nature of executive privilege, a presidential prerogative that is encumbered by significant limitations.
Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval before appearing before
Congress, the notion of executive control also comes into consideration. However, the ability of the President to require a
military official to secure prior consent before appearing before Congress pertains to a wholly different and independent
specie of presidential authority, the commander-in-chief powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may
attach to executive privilege or executive control.

During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the issues
raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of E.O. 464 would
bear no impact on the present petition since petitioners herein were not called to task for violating the executive order.
Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the aegis of the commander-
in-chief powers to require military officials from securing prior consent before appearing before Congress. The pertinent
factors in considering that question are markedly outside of those, which did become relevant in adjudicating the issues
raised in Senate. It is in this petition that those factors come into play.

At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General Gudani
argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement last 4 October 2005.
He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to military law as, among others,
all officers and soldiers in the active service of the [AFP], and points out that he is no longer in the active service.

This point was settled against Gen. Gudanis position in Abadilla v. Ramos, where the Court declared that an officer whose
name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when
military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been
acquired over the officer, it continues until his case is terminated. Thus, military jurisdiction has fully attached to Gen.
Gudani inasmuch as both the acts complained of and the initiation of the proceedings against him occurred before he
compulsorily retired on 4 October 2005.

2. Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to their appearance
before the Senate, claiming that it violates the constitutional right to information and transparency in matters of public
concern; or if not, is tantamount at least to the criminal acts of obstruction of justice and grave coercion . However, the
proper perspective from which to consider this issue entails the examination of the basis and authority of the President to
issue such an order in the first place to members of the AFP and the determination of whether such an order is subject to
any limitations.

Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to the
legislative and executive branches of government in relation to military affairs. Military appropriations, as with all other
appropriations, are determined by Congress, as is the power to declare the existence of a state of war. Congress is also
empowered to revoke a proclamation of martial law or the suspension of the writ of habeas corpus. The approval of the
Commission on Appointments is also required before the President can promote military officers from the rank of colonel
or naval captain. Otherwise, on the particulars of civilian dominance and administration over the military, the Constitution
is silent, except for the commander-in-chief clause which is fertile in meaning and implication as to whatever inherent
martial authority the President may possess.

The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with
the simple declaration that [t]he President shall be the Commander-in-Chief of all armed forces of the Philippines x x x
Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commander-in-chief clause
vests on the President, as commander-in-chief, absolute authority over the persons and actions of the members of the
armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military
officers, activities which may otherwise be sanctioned under civilian law. Reference to Kapunan, Jr. v. De Villa is useful in
this regard. Lt. Col. Kapunan was ordered confined under house arrest by then Chief of Staff (later President) Gen. Fidel
Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press statements or give
any press conference during his period of detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be gainsaid that certain liberties of
persons in the military service, including the freedom of speech, may be circumscribed by rules of military discipline. Thus, to a
certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law
depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question
and rules must be faithfully complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint that the
restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior officer is
punishable by court-martial under Article 65 of the Articles of War. An individual soldier is not free to ignore the lawful
orders or duties assigned by his immediate superiors. For there would be an end of all discipline if the seaman and marines
on board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to act upon their own opinion
of their rights [or their opinion of the Presidents intent], and to throw off the authority of the commander whenever they
supposed it to be unlawfully exercised.

Further traditional restrictions on members of the armed forces are those imposed on free speech and mobility.
Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from speaking out on
certain matters. As a general rule, the discretion of a military officer to restrain the speech of a soldier under his/her
command will be accorded deference, with minimal regard if at all to the reason for such restraint. It is integral to military
discipline that the soldiers speech be with the consent and approval of the military commander. The necessity of upholding
the ability to restrain speech becomes even more imperative if the soldier desires to speak freely on political matters . The
Constitution requires that [t]he armed forces shall be insulated from partisan politics, and that [n]o member of the military
shall engage directly or indirectly in any partisan political activity, except to vote. Certainly, no constitutional provision or
military indoctrination will eliminate a soldiers ability to form a personal political opinion, yet it is vital that such opinions
be kept out of the public eye. For one, political belief is a potential source of discord among people, and a military torn by
political strife is incapable of fulfilling its constitutional function as protectors of the people and of the State. For another,
it is ruinous to military discipline to foment an atmosphere that promotes an active dislike of or dissent against the
President, the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they
may dislike or distrust. This fundamental principle averts the country from going the way of banana republics.

Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary restriction on
members of the military. A soldier cannot leave his/her post without the consent of the commanding officer. The reasons
are self-evident. The commanding officer has to be aware at all times of the location of the troops under command, so as to
be able to appropriately respond to any exigencies. For the same reason, commanding officers have to be able to restrict
the movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is necessary. At times,
this may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness the birth of his
first-born, or to attend the funeral of a parent. Yet again, military life calls for considerable personal sacrifices during the
period of conscription, wherein the higher duty is not to self but to country.

Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before he/she may
leave his destination. A soldier who goes from the properly appointed place of duty or absents from his/her command,
guard, quarters, station, or camp without proper leave is subject to punishment by court-martial. It is even clear from the
record that petitioners had actually requested for travel authority from the PMA in Baguio City to Manila, to attend the
Senate Hearing. Even petitioners are well aware that it was necessary for them to obtain permission from their superiors
before they could travel to Manila to attend the Senate Hearing.

It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed. They
seek to be exempted from military justice for having traveled to the Senate to testify before the Senate Committee
against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners’ position is affirmed, a considerable
exception would be carved from the unimpeachable right of military officers to restrict the speech and movement of
their juniors. The ruinous consequences to the chain of command and military discipline simply cannot warrant the
Courts imprimatur on petitioners’ position.

3. We have to consider the question: may the President prevent a member of the armed forces from testifying
before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her power
as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under
military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it
of a military officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the
President. If the President is not so inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of the land which the President has
the duty to faithfully execute.

Explication of these principles is in order. As earlier noted, we ruled in Senate that the President may not issue a blanket
requirement of prior consent on executive officials summoned by the legislature to attend a congressional hearing. In doing
so, the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege must be
formally invoked on specified grounds. However, the ability of the President to prevent military officers from
testifying before Congress does not turn on executive privilege, but on the Chief Executive’s power as commander -
in-chief to control the actions and speech of members of the armed forces. The President’s prerogatives as
commander-in-chief are not hampered by the same limitations as in executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek presidential approval before
appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives
of the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as
budget appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests
the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the Presidents ability to control the
individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between
obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose
the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the
commander-in-chief of the armed forces.

At the same time, the refusal of the President to allow members of the military to appear before Congress is still
subject to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of inquiries
in aid of legislation. Inasmuch as it is ill-advised for Congress to interfere with the President’s power as commander-in-
chief, it is similarly detrimental for the President to unduly interfere with Congresss right to conduct legislative inquiries.
The impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition.
Yet the Court is aware that with its pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize.

We believe and hold that our constitutional and legal order sanctions a modality by which members of the military may be
compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not offend the
Chief Executives prerogatives as commander-in-chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any
basic rule that persons summoned to testify before Congress must do so. There is considerable interplay between the
legislative and executive branches, informed by due deference and respect as to their various constitutional functions.
Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the other to
a particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic
with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to
originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution
to compel obeisance to its rulings by the other branches of government.

4. In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from
testifying before Congress without the President’s consent notwithstanding the invocation of executive privilege to
justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso facto superseded the
claim of executive privilege, acknowledging instead that the viability of executive privilege stood on a case to case basis.
Should neither branch yield to the other branch’s assertion, the constitutional recourse is to the courts, as the final arbit er if
the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries.

Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of the AFP
to appear before Congress, the legislative body seeking such testimony ma y seek judicial relief to compel the
attendance. Such judicial action should be directed at the heads of the executive branch or the armed forces, the
persons who wield authority and control over the actions of the officers concerned. The legislative purpo se of such
testimony, as well as any defenses against the same whether grounded on executive privilege, national security or
similar concerns would be accorded due judicial evaluation. All the constitutional considerations pertinent to either
branch of government may be raised, assessed, and ultimately weighed against each other. And once the courts
speak with finality, both branches of government have no option but to comply with the decision of the courts,
whether the effect of the decision is to their liking or disfavor.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the legislative
and executive branches of government on the proper constitutional parameters of power. This is the fair and workable
solution implicit in the constitutional allocation of powers among the three branches of government. The judicial filter
helps assure that the particularities of each case would ultimately govern, rather than any overarching principle unduly
inclined towards one branch of government at the expense of the other. The procedure may not move as expeditiously as
some may desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is compelled
to yield to the other. Moreover, judicial review does not preclude the legislative and executive branches from negotiating a
mutually acceptable solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their relationship with a salve of their own
choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as commander -in-chief, to
authorize the appearance of the military officers before Congress. Even if the President has earlier disagreed with the
notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the
final orders of the courts.

Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on them and other
military officers not to testify before Congress without the Presidents consent. Yet these issues ultimately detract from the
main point that they testified before the Senate despite an order from their commanding officer and their commander -in-
chief for them not to do so, in contravention of the traditions of military discipline, which we affirm today. The issues
raised by petitioners could have very well been raised and properly adjudicated if the proper procedure was observed.
Petitioners could have been appropriately allowed to testify before the Senate without having to countermand their
Commander-in-chief and superior officer under the setup we have prescribed.

We consider the other issues raised by petitioners unnecessary to the resolution of this petition. Petitioners may have been
of the honest belief that they were defying a direct order of their Commander-in-Chief and Commanding General in
obeisance to a paramount idea formed within their consciences, which could not be lightly ignored. Still, the Court, in turn,
is guided by the superlative principle that is the Constitution, the embodiment of the national conscience. The Constitution
simply does not permit the infraction which petitioners have allegedly committed, and moreover, provides for an orderly
manner by which the same result could have been achieved without offending constitutional principles.

Petition denied.
CASE LAW/ DOCTRINE:
May the President prevent a member of the armed forces from testifying before a legislative inquiry? We hold that the President has
constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who
defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the
appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the
President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final
judicial orders have the force of the law of the land, which the President has the duty to faithfully execute.

If the President or the Chief of Staff refuses to allow a member of the AFP to appear before Congress, the legislative body seeking such
testimony may seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of the executive
branch or the armed forces, the persons who wield authority and control over the actions of the officers concerned. The legislative
purpose of such testimony, as well as any defenses against the same whether grounded on executive privilege, national securit y or
similar concerns would be accorded due judicial evaluation. All the constitutional considerations pertinent to either branch of
government may be raised, assessed, and ultimately weighed against each other. And once the courts speak with finality, both branches
of government have no option but to comply with the decision of the courts, whether the effect of the decision is to their liking or
disfavor.
103 Reverend Father ROBERT P. REYES, Petitioner, AUTHOR:
vs. NOTES: (if applicable)
RAUL M. GONZALEZ, in his capacity as the secretary of
the COURT OF APPEALS, secretary DEPARTMENT OF
JUSTICE, AND COMMISSIONER MARCELINO C.
LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER
OF THE BUREAU OF IMMIGRATION, Respondents.
[G.R. No. 182161; December 3, 2009]
TOPIC:
PONENTE: LEONARDO-DE CASTRO, J.

FACTS: (chronological order)

1. Petitioner together with fifty (50) others, were brought to Camp Crame to await inquest proceedings. The Department of Justice
(DOJ) Panel of Prosecutors conducted inquest proceedings to ascertain whether or not there was probable cause to hold
petitioner and the others for trial on charges of Rebellion and/or Inciting to Rebellion.
2. Upon the request of the Department of Interior and Local Government (DILG), respondent DOJ Secretary Raul Gonzales issued
Hold Departure Order (HDO) ordering respondent Commissioner of Immigration to include in the Hold Departure List of the
Bureau of Immigration and Deportation (BID) the name of petitioner and 49 others relative to the aforementioned case in the
interest of national security and public safety.
3. After finding probable cause against petitioner and 36 others for the crime of Rebellion under Article 134 of the Revised Penal
Code, the DOJ Panel of Prosecutors filed an Information before the Regional Trial Court, Makati.
4. Petitioner filed a Motion for Judicial Determination of Probable Cause and Release of the Accused Fr. Reyes. Upon
Recognizance asserting that the DOJ panel failed to produce any evidence indicating his specific participation in the crime
charged; and that under the Constitution, the determination of probable cause must be made personally by a judge.
5. The RTC dismissed the charge for Rebellion against petitioner and 17 others for lack of probable cause. The trial court
ratiocinated, among others, that the evidence submitted by the DOJ Panel of Investigating Prosecutors failed to show that
petitioner and the other accused-civilians conspired and confederated with the accused-soldiers in taking arms against the
government.
6. Petitioner’s counsel Atty. Francisco L. Chavez wrote the DOJ Secretary requesting the lifting of HDO in view of the dismissal
of the crimininal case against him. Secretary Gonzales stated that the DOJ could not act on petitioner’s request until Atty.
Chavez’s right to represent petitioner is settled in view of the fact that a certain Atty. J. V. Bautista representing himself as
counsel of petitioner had also written a letter to the DOJ.
7. Petitioner filed the instant petition claiming that despite the dismissal of the rebellion case against petitioner, HDO still subsists.
Petitioner further maintained that immediate recourse to the Supreme Court for the availment of the writ is exigent as the
continued restraint on petitioner’s right to travel is illegal.
8. Respondents, represented by the Office of the Solicitor-General (OSG), maintained that the Secretary of the DOJ’s power to
issue HDO springs from its mandate under the Administrative Code to investigate and prosecute offenders as the principal law
agency of the government.

ISSUE(S): Whether or not petitioner’s right to liberty has been violated or threatened with violation by the issuance of the subject
HDO, which would entitle him to the privilege of the writ of amparo.

HELD: NO.

RATIO:

Section 1 of the Rule on the Writ of Amparo provides:

Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or
entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al., 11 made a categorical pronouncement that the Amparo Rule in its
present form is confined to these two instances of "extralegal killings" and "enforced disappearances," or to threats thereof, thus:

x x x As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its
coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the
protection of law."12

In Tapuz v. Del Rosario, the Court laid down the basic principle regarding the rule on the writ of amparo as follows:

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of
killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to
protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that
its issuance demands – requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to
wit:

"(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or
uncertain, the respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of
the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or
individuals, as well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of
the person responsible for the threat, act or omission; and
(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs."

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the
supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and
security of the aggrieved party was or is being committed. (Emphasis supplied)

The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon are the following: (1)
right to life; (2) right to liberty; and (3) right to security.

The restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him was not
unlawful. Petitioner has failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a
serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy.

A person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. In
such cases, whether the accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the court’s sound
discretion.
CASE LAW/ DOCTRINE:

DISSENTING/CONCURRING OPINION(S):
104. CENPEG vs. COMELEC AUTHOR:
GR. No. 189546; September 21, 2010 NOTES:
TOPIC:
PONENTE: Abad, J.

FACTS:
1. This case concerns the duty of the COMELEC to disclose the source code for the Automated Election System
(AES) technologies it used un the 2010 national and local elections.
2. Petitioner Center for People Empowerment in Governance (CenPEG), a non-government organization, wrote
respondent COMELEC, requesting a copy of the source code of the Precinct Count Optical Scan (PCOS)
programs, the Board of Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal,
provincial, national, and congressional canvass, the COMELEC server programs, and the source code of the in-
house COMELEC programs called the Data Capturing System (DCS) utilities.
3. CenPEG invoked the following pertinent portion of Section 12 of RA 9369, which provides: Once an AES
technology is selected for implementation, the Commission shall promptly make the source code of that
technology available and open to any interested political party or groups which may conduct their own
review thereof.
4. Section 2(12) of RA 9369 describes the source code as the human readable instructions that define what the
computer equipment will do. This has been explain in an article: Source Code is the human readable
representation of the instructions that control the operation of a computer. Computers are composed of
hardware (the physical devices themselves) and software (which controls the operation of the hardware).
The software instructs the computer how to operate; without software, the computer is useless. Source code
is the human readable form in which software is written by computer programmers. Source code is usuallt
written in a programming language that is arcane and incomprehensible to non-specialists but, to a
computer programmer, the source code is the master blueprint that reveals and determines how the
machine will behave.
5. The COMELEC granted the request for the source code of the PCOS and the CCS, but denied that for the DCS,
since the DCS was a system used in processing the Lists of Voters, which is not part of the voting, counting and
canvassing systems contemplated by RA 9369.
6. According to COMELEC, if the source code for the DCS were to be divulged, unscrupulous individuals might
change the program and pass off an illicit one that could benefit certain candidate or parties.
7. Still, the COMELEC apparently did not release even the kinds of source code that is said it was approving for
release.
8. Consequently, CenPEG once more asked COMELEC for the source code of the PCOS, together with other
documents, programs and diagrams related to the AES. CenPEG sent follow-up letters.
9. COMELEC replied that the source code CenPEG wanted did not yet exist for the reasons: 1) that it had not yet
received the baseline source code of the provider, SMARTMATIC, since payment to it had been withheld as a
result of a pending suit; 2) its customization of the baseline source code was targeted for completion in November
2009 yet; 3) under Section 11 of RA 9369, the customized source code still had to be reviewed by an established
international certification entity, which review was expected to be completed by the end of February 2010; 4) on ly
then would the AES be made available for review under a controlled environment.

ISSUE(S): WON the petitioner may compel COMELEC to disclose the source code for the AES technologies it used in
the 2010 national and local elections.
HELD: YES. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make
the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to
CenPEG and all other interested political parties or groups for independent review.

RATIO:

The pertinent portion of Section 12 of R.A. 9369 is clear in that once an AES technology is selected for implementation,
the Commission shall promptly make the source code of that technology available and open to any interested political
party or groups which may conduct their own review thereof. The COMELEC has offered no reason not to comply with
this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available
when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, under a
controlled environment. The elections had passed and that reason is already stale.
105 Senate of the Philippines v. Eduardo Ermita AUTHOR: RC Alfafara
[G.R. No. 169777; April 20, 2006] NOTE/S:
TOPIC: In the exercise of its legislative power, the Senate of the Philippines,
through its various Senate Committees, conducts inquiries or
PONENTE: Carpio-Morales, J. investigations in aid of legislation which call for the attendance of
officials and employees of the executive department, bureaus, and offices
including those employed in GOCCs, the AFP, and the PNP.
FACTS:
1. Consolidated petitions for certiorari and prohibition to declare E.O. 464 null and void.
2. On September 21 to 23, 2005, the Senate Committee as a whole issued invitations to various officials of the Executive
Dept for them to appear as resource speakers in a public hearing on the railway project of the North Luzon Railways Corp
with the China Natl Machinery and Equipment Group (North Rail Project). The public hearing was sparked by a privilege
speech of Sen. Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract.
3. The Senate Committee on National Defense and Security issued invitations to the following AFP officials : the AFP
Commanding General, Lt. Gen. Esperon; Inspector General of the AFP Vice Admiral Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear
Admiral Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Quevedo; Assistant Superintendent of the PMA Brig. Gen . Gudani; and
Assistant Commandant, Corps of Cadets of the PMA, Col. Balutan, for them to attend as resource persons in a public hearing on the ff:
(1) Privilege Speech of Senator Pimentel Jr., 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 Estrada entitled "The Philippines as the Wire -Tapping Capital of the
World"; (3) Privilege Speech of Senator Biazon entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Se nator 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 hearing was the AFP Chief of Staff who 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."
4. Senate Pres Drilon received from Exec Sec Ermita a letter requesting for the postponement of the hearing regarding the
NorthRail project to which various officials of the Exec Dept have been invited to afford said officials ample time and
opportunity to study and prepare for the various issues so that they may better enlighten the Senate on its investigation.
5. Drilon, however, wrote Ermita that the Senators "are unable to accede to his request" as it "was sent belatedly" and "all
preparations and arrangements as well as notices to all resource persons were completed the previous week."
6. Drilon likewise received a letter from the Pres. of the North Luzon Railways Corp requesting that the hearing be
postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements had been secured.
7. 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," which, pursuant to Section 6, 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 b y this executive order,
including:
 Conversations and correspondence between the President and the public official covered by this executive order;
 Military, diplomatic and other national security matters which in the interest of national security should not be divulged;
 Information between inter-government agencies prior to the conclusion of treaties and executive agreements;
 Discussion in close-door Cabinet meetings;
 Matters affecting national security and public order.
(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.
8. Drilon received from Ermita a copy of E.O. 464, and another letter 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
letter to Senator Biazon, Chairperson of the Committee on National Defense and Security, informin g him "that per
instruction of Pres Arroyo, 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.
9. Despite this, 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.
10. For defying Pres Arroyo’s order barring military personnel from testifying before legislative inquiries without her
approval, Gudani and Balutan were relieved from their military posts & made to face court martial proceedings .
11. As to the NorthRail project hearing, Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent.
12. Three petitions for certiorari and prohibition were filed before the SC challenging the constitutionality of E.O. 464.
13. (1) G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, et al. all
claiming to have standing because of the transcendental importance of the issues they posed that E.O. 464 be declared null
and void for being unconstitutional; that respondent Executive Secretary as 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 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 t o 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. 4 64
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; (2) 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; (3) G.R. No. 169667, petitioner Alternative Law Groups, Inc. (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, prays, that said order be
declared null and void for being unconstitutional and Ermita be ordered to cease from implementing it.
14. Petitioner Senate, alleged 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.
15. PDP-Laban, a registered political party with members duly elected into the Senate and HOR, filed a similar petition.
16. Sen Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the hearing on the
alleged wiretapping. Senga replied that "pursuant to EO No. 464, the Headquarters requested for a clearance from the Pres
to allow them to appear before the public hearing" and that "they will attend once their request is approved by the Pres."
17. As none of those invited appeared, the hearing was cancelled.
18. 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 DA, several Cabinet officials were invited to the hearings but most of them failed to attend having invoked E.O. 464.
19. In the budget hearings set by the Senate, Press Secretary and Presidential Spokesperson Bunye, DOJ Secretary
Gonzalez and DILG Undersecretary Corpus communicated their inability to attend due to lack of appropriate clearance
from the Pres pursuant to E.O. 464.
20. Jose Anselmo Cadiz and the incumbent members of the Board of Governors of the IBP, as taxpayers, and the IBP as
the official organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of pub lic
interest, filed their petition for certiorari and prohibition, and pray that E.O. 464 be declared null and void.
21. All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
22. In the oral arguments, 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 procedura l
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.
23. Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda, while those in G.R. No. 16966725
and G.R. No. 16983426 filed theirs the next day. Petitioners in G.R. No. 171246 did not file any memorandum.
24. Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum was granted,
subsequently filed a manifestation 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.
25. Respondents Executive Secretary Ermita et al., pray for the dismissal of the petitions for lack of merit.
ISSUE:
(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.
HELD:
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.
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.
Dispositive: 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.
RATIO:
Essential requisites for judicial review

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.

Respondents, through the Solicitor General, maintain that Ocampo et al. have not shown any specific prerogative, power,
and privilege of the HOR 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, respondents
contend that such interest falls short of that required to confer standing on them as parties "injured-in-fact."
Respecting 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. With regard to the petition 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.

That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a
democratic system, but more especially for sound legislation 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. 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.
In the same vein, party-list representatives Ocampo (Bayan Muna), Casino (Bayan Muna), Virador (Bayan Muna), Beltran
(Anakpawis), Mariano (Anakpawis), and 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 HOR 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.

Bayan Muna, likewise meets the standing requirement as it obtained three seats in the HOR in the 2004 elections and is
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.

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, invoke their constitutional right to
information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is
essential to the effective exercise of other constitutional rights and to the maintenance of the balance of power among the
three branches of the government through the principle of checks and balances.

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,
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 th e
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. 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. In fine, PDP-Laban’s alleged interest as a political party
does not suffice to clothe it with legal standing.

Actual Case or 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. 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 the
Senate, it would make no sense to wait for any further event before considering the present case ripe for adjudication. It
would be sheer abandonment of duty if the Court would 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 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.

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.

The power of inquiry is co-extensive with the power to legislate. 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.

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.

As noted in Bengzon v. Senate Blue Ribbon Committee, 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.

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.

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."

Executive privilege

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

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.

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.

The leading case on executive privilege in the United States is U.S. v. Nixon, 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.

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez…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.

Similarly, in Chavez v. PEA, the Court ruled that the right to information does not extend to matters recognized as
"privileged information under the separation of powers," by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. 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.

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 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.

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, corresponding to what is known in Britain as the question period.
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. 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 fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed
in pursuit of legislation.

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.

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.

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. 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, AFP and PNP Chief, 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.

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. 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 of respondent Ermita to Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464.
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 ar e covered by E.O.
464. As explained earlier, 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.

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.

Section 3 of E.O. 464, 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.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly
asserted…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.
In A.O. Smith v. Federal Trade Commission: The 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.
Black v. Sheraton Corp. of America 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... An improperly asserted claim of privilege is no claim of privilege.

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. A useful analogy in determining the requisite
degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S. 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.’ … 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

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 Pres 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 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.

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 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 Preside nt 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.
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

There are 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.

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. Thus, 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.

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…”
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.
106 ROMULO L. NERI vs.
SENATE COMMITTEE ON
ACCOUNTABILITY OF PUBLIC
OFFICERS AND
INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND
COMMERCE, AND SENATE
COMMITTEE ON NATIONAL
DEFENSE AND SECURITY
[G.R. No. 180643; September 4,
2008]
PONENTE: Leonardo-De Castro, J.
AUTHOR:
NOTES: Executive privilege is not a personal privilege, but one that adheres
to the Office of the President. It exists to protect public interest, not to benefit
a particular public official. Its purpose, among others, is to assure that the
nation will receive the benefit of candid, objective and untrammeled
communication and exchange of information between the President and
his/her advisers in the process of shaping or forming policies and arriving at
decisions in the exercise of the functions of the Presidency under the
Constitution. The confidentiality of the President’s conversations and
correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all
citizens and more, because it is dictated by public interest and the
constitutionally ordained separation of governmental powers.

FACTS:
1. Petitioner appeared before respondent Committees and testified for about eleven (11) hours on matters
concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of
Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE").
Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed
President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed
him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s
discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." To be
specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the
NBN Project, (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him
to approve it.
2. On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege.
3. On November 22, 2007, the respondent Committees issued a show-cause letter requiring him to explain
why he should not be cited in contempt.
4. In petitioner’s reply to respondent Committees, he manifested that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were those he claimed to be covered by
executive privilege. He also manifested his willingness to appear and testify should there be new matters
to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify."
5. Respondent Committees found petitioner’s explanations unsatisfactory. They cited petitioner in contempt
of respondent Committees and ordered his arrest and detention at the Office of the Senate Sergeant-at-
Arms until such time that he would appear and give his testimony.
ISSUE #1: Whether or not there is a recognized presumptive presidential communications privilege in our
legal system

Respondents’ contention: The right to information does not extend to matters recognized as ‘privileged
information’ under the separation of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings

SC RULING: Yes, there is a a recognized presumptive presidential communications privilege in our legal system.
RATIO:
1. [W]hen an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to
be exempt from disclosure, there can be no presumption of authorization to invoke executive
privilege given by the President to said executive official, such that the presumption in this situation
inclines heavily against executive secrecy and in favor of disclosure.
2. The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by
the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
3. In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which
 was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees’ investigation.
4. 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.
5. 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.
6. Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the
same be recognized and be given preference or priority, in the absence of proof of a compelling or critical
need for disclosure by the one assailing such presumption.
ISSUE #2: Whether or not there is factual or legal basis to hold that the communications elicited by the
three (3) questions are covered by executive privilege

SC RULING: Yes, there is.

 Respondent’s contention #1: The power to secure a foreign loan does not relate to a "quintessential and
non-delegable presidential power," because the Constitution does not vest it in the President alone, but also in
the Monetary Board which is required to give its prior concurrence and to report to Congress.
 SC Ruling: The fact that a power is subject to the concurrence of another entity does not make such power
less executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated
essence of substance. On the other hand, "non-delegable" means that a power or duty cannot be delegated
to another or, even if delegated, the responsibility remains with the obligor. The power to enter into an
executive agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence. Now, the fact that the President has to secure the prior concurrence of the
Monetary Board, which shall submit to Congress a complete report of its decision before contracting or
guaranteeing foreign loans, does not diminish the executive nature of the power.

 Respondent’s contention #2: Application of the "doctrine of operational proximity" must be reconsidered
because "it maybe misconstrued to expand the scope of the presidential communications privilege to
communications between those who are ‘operationally proximate’ to the President but who may have "no
direct communications with her.
o SC Ruling: Not every person who plays a role in the development of presidential advice, no matter
how remote and removed from the President, can qualify for the privilege... Only communications
at that level are close enough to the President to be revelatory of his deliberations or to pose a risk
to the candor of his advisers... [It] is "operational proximity" to the President that matters in
determining whether "[t]he President’s confidentiality interests" is implicated.
o In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" is
absent because the official involved here is a member of the Cabinet, thus, properly within the term
"advisor" of the President; in fact, her alter ego and a member of her official family. Nevertheless, in
circumstances in which the official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of Justice. This goes to show that
the operational proximity test used in the Decision is not considered conclusive in every case. In
determining which test to use, the main consideration is to limit the availability of executive privilege only
to officials who stand proximate to the President, not only by reason of their function, but also by reason
of their positions in the Executive’s organizational structure. Thus, respondent Committees’ fear that the
scope of the privilege would be unnecessarily expanded with the use of the operational proximity test is
unfounded.
 Respondent’s contention #3: The President’s claim of executive privilege is merely based on a generalized
interest; and in balancing respondent Committees’ and the President’s clashing interests, the Court
disregarded the 1987 Constitutional provisions on government transparency, accountability and disclosure of
information.
o SC Ruling: It must be stressed that the President’s claim of executive privilege is not merely founded on
her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary
Ermita specified presidential communications privilege in relation to diplomatic and economic
relations with another sovereign nation as the bases for the claim.
o It is easy to discern the danger that goes with the disclosure of the President’s communication with her
advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product
of the meeting of minds between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are matters which China will
surely view with particular interest. There is danger in such kind of exposure. It could adversely affect
our diplomatic as well as economic relations with the People’s Republic of China.
o The privileged character of diplomatic negotiations has been recognized in this jurisdiction...
[I]nformation on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest.
o Considering that the information sought through the three (3) questions subject of this Petition involves
the President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view
that Congress may peremptorily inquire into not only official, documented acts of the President but even
her confidential and informal discussions with her close advisors on the pretext that said questions serve
some vague legislative need.

[!!!] SUB-ISSUE: Whether or not, in upholding executive privilege with respect to the 3 questions, the SC
curbed the public’s right to information
SC RULING: No, it did not.
RATIO:
 There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to
the effective functioning of a democratic government.
 This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation.
There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the
NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of
respondents’ investigation the three (3) questions that elicit answers covered by executive privilege and
rules that petitioner cannot be compelled to appear before respondents to answer the said questions. We
have discussed the reasons why these answers are covered by executive privilege. That there is a
recognized public interest in the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute right.
 Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the people’s right to public information.

ISSUE #3: Whether or not respondent Committees have shown that the communications elicited by the
three (3) questions are critical to the exercise of their functions

SC RULING: No, they have not.

RATIO:
1. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which, according to said respondents, would
"aid" them in crafting legislation.
2. [T]he starting point in resolving the conflicting claims between the Executive and the Legislative Branches
is the recognized existence of the presumptive presidential communications privilege. This is conceded
even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:
3. The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to be
 elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation.
Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power
to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters
relating to these bills could not be determined without the said information sought by the three (3)
questions.
4. The failure of the counsel for respondent Committees to pinpoint the specific need for the information
sought or how the withholding of the information sought will hinder the accomplishment of their
legislative purpose is very evident in the above oral exchanges. Due to the failure of the respondent
Committees to successfully discharge this burden, the presumption in favor of confidentiality of
presidential communication stands.
5. The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of
the President. While it may be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government transaction, it is simply not a task for
the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a
crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the
Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.
107 HAZEL MA. C. ANTOLIN, Petitioner, - versus - AUTHOR: Ernest
ABELARDO T. DOMONDON, JOSE A. GANGAN, and VIOLETA J. JOSEF, Respondents. NOTE/S:
G.R. No. 165036 July 5, 2010 See ruling on mandamus, exhaustion of admin
TOPIC: Mandamus, exhaustion of admin remedies, mootness, right to information remedies, and right to information and its limitations.
PONENTE: DEL CASTILLO, J.:
FACTS:
1. Petitioner took the accountancy licensure examinations (the Certified Public Accountant [CPA] Board Exams) conducted by the
Board of Accountancy (the Board) in October 1997.The examination results were released on October 29, 1997; out of 6,481 examinees,
only 1,171 passed. Unfortunately, petitioner did not make it. When the results were released, she received failing grades in four
out of the seven subjects.

Subject Petitioners
Grade
Theory of Accounts 65 %
Business Law 66 %
Management Services 69 %
Auditing Theory 82 %
Auditing Problems 70 %
Practical Accounting I 68 %
Practical Accounting II 77 %

2. Convinced that she deserved to pass the examinations, she wrote to respondent Abelardo T. Domondon (Domondon), Acting
Chairman of the Board of Accountancy, and requested that her answer sheets be re-corrected. On November 3, 1997, petitioner
was shown her answer sheets, but these consisted merely of shaded marks, so she was unable to determine why she failed the
exam. Thus, on November 10, 1997, she again wrote to the Board to request for copies of (a) the questionnaire in each of the seven
subjects (b) her answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation of the grading system used in each
subject (collectively, the Examination Papers).[

3. Acting Chairman Domondon denied petitioners request on two grounds: first, that Section 36, Article III of the Rules and Regulations
Governing the Regulation and Practice of Professionals, as amended by Professional Regulation Commission (PRC) Resolution No. 332,
series of 1994, only permitted access to the petitioners answer sheet (which she had been shown previously), and that reconsideration of
her examination result was only proper under the grounds stated therein:

Sec. 36 An examinee shall be allowed to have access or to go over his/her test papers or answer sheets on a date not later than
thirty (30) days from the official release of the results of the examination. Within ten (10) days from such date, he/she may file his/her
request for reconsideration of ratings. Reconsideration of rating shall be effected only on grounds of mechanical error in th e grading
of his/her testpapers or answer sheets, or malfeasance.

4. Second, Acting Chairman Domondon clarified that the Board was precluded from releasing the Examination Papers (other than petitioners
answer sheet) by Section 20, Article IV of PRC Resolution No. 338, series of 1994, which provides:

Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts The hereunder acts shall constitute prejudicial, illegal, grossly immoral,
dishonorable, or unprofessional conduct:

A. Providing, getting, receiving, holding, using or reproducing questions

xxxx
3. that have been given in the examination except if the test bank for the subject has on deposit at least two thousand (2,000)
questions.[7]

After a further exchange of correspondence, the Board informed petitioner that an investigation was conducted into her exam and
there was no mechanical error found in the grading of her test papers.

Proceedings before the Regional Trial Court

On January 12, 1998, petitioner filed a Petition for Mandamus with Damages against the Board of Accountancy and its members before
the Regional Trial Court (RTC) of Manila. The Petition included a prayer for the issuance of a preliminary mandatory injunction ordering the
Board of Accountancy and its members (the respondents) to furnish petitioner with copies of the Examination Papers. Petitioner also prayed
that final judgment be issued ordering respondents to furnish petitioner with all documents and other materials as would enab le her to
determine whether respondents fairly administered the examinations and correctly graded petitioners performance therein, and, if warranted, to
 issue to her a certificate of registration as a CPA.

On February 5, 1998, respondents filed their Opposition to the Application for a Writ of Preliminary Mandatory Injunction, and argued, inter
alia, that petitioner was not entitled to the relief sought, that the respondents did not have the duty to furnish petitioner with copies of the
Examination Papers, and that petitioner had other plain, speedy, adequate remedy in the ordinary course of law, namely, recourse to the PRC.

On March 3, 1998, petitioner filed an Amended Petition (which was admitted by the RTC)

On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss Application for Writ of Preliminary Mandatory Injunction, on
the ground that petitioner had taken and passed the May 1998 CPA Licensure Examination and had taken her oath as a CPA.

Regional Trial Court

October 16, 1998, the trial court granted respondents Motion to Dismiss Petitioners Application for a Writ of Preliminary Mandatory
Injunction (not the main case), ruling that the matter had become moot since petitioner passed the May CPA Licensure 1998
Examination and had already taken her oath as a CPA.

Undaunted, petitioner sought and obtained leave to file a Second Amended Petition for Mandamus with Damages where she finally impleaded
the PRC as respondent and included the following plea in her prayer:

(a) commanding respondents to give petitioner all documents and other materials as would enable her to determine whether
respondents fairly administered the same examinations and correctly graded petitioners performance therein and, if warranted, to
make the appropriate revisions on the results of her examination. (Emphasis ours)

On June 21, 2002, the trial court dismissed the petition on the ground that the petition had already become moot, since petitioner managed to
pass the 1998 CPA Board examinations

Petitioner sought reconsideration which was granted by the trial court in its Omnibus Order [2 dated November 11, 2002. The Omnibus Order
provides in part:

On the motion for reconsideration filed by the petitioner, the Court is inclined to reconsider its Order dismissing the petition. The
Court agrees with the petitioner that the passing of the petitioner in the subsequent CPA examination did not render the petition moot
and academic because the relief and if warranted, to issue to her a certificate of registration as Certified Public Accountant was
deleted from the original petition. As regard the issue of whether the petitioner has the constitutional right to have access to the
questioned documents, the Court would want first the parties to adduce evidence before it can resolve the issue so that it can make a
complete determination of the rights of the parties.

The Court would also want the Professional Regulation Commission to give its side of the case the moment it is impleaded as a
respondent in the Second Amended Petition for Mandamus filed by the petitioner which this Court is inclined to grant.

As to the Motion for Conservatory Measures filed by the petitioner, the Court denies the same. It is clear that the PRC has in custody
the documents being requested by the petitioner. It has also an adequate facility to preserve and safeguard the documents. To be
sure that the questioned documents are preserved and safeguarded, the Court will order the PRC to preserve and safeguard the
documents and make them available anytime the Court or petitioner needs them.

WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and set aside. The Professional Regulation Commission
is ordered to preserve and safeguard the following documents:

a) Questionnaire in each of the seven subjects comprising the Accountancy Examination of October, 1997;
b) Petitioners Answer Sheets; and
c) Answer keys to the questionnaires.

SO ORDERED.[23]

Respondents filed a motion for reconsideration which was denied.[24]

Proceedings before the Court of Appeals

The RTC Decisions led to the filing of three separate petitions for certiorari before the Court of Appeals (CA):

(a) CA-GR SP No. 76498, a petition filed by respondents Domondon, Gangan, and Josef on April 11, 2003;
(b) CA-GR SP No. 76546, a petition filed by respondent Ibe on April 30, 2003; and
(c) CA-GR SP No. 76545, a petition filed by the Board of Accountancy and PRC.
It is the first two proceedings that are pending before us. In both cases, the CA set aside the RTC Decisions and ordered the dismissal of Civil Case No.
98-8681.

Ruling of the Court of Appeals

In its December 11, 2006 Decision [25] in CA-GR SP No. 76546, the CA ruled that the petition has become moot in view of petitioners eventual passing of
the 1998 CPA Board Exam

In CA-GR SP No. 76498, the CA found, in a Decision dated February 16, 2004,that
(i) Section 20, Article IV of PRC Resolution No. 338 constituted a valid limitation on petitioners right to information and access to government
documents;
(ii) the Examination Documents were not of public concern, because petitioner merely sought review of her failing marks;
(iii) it was not the ministerial or mandatory function of the respondents to review and reassess the answers to examination questi ons of a
failing examinee;
(iv) the case has become moot, since petitioner already passed the May 1998 CPA Board Examinations and took her oath as a CPA; and
(v) petitioner failed to exhaust administrative remedies, because, having failed to secure the desired outcome from the respondents, she did
not elevate the matter to the PRC before seeking judicial intervention.

CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the petitioner and docketed as G.R. Nos. 165036 and 175705,
respectively. The cases were then consolidated, in view of the similarity of the factual antecedents and issues, and to avoid the possibility of conflicting
decisions by different divisions of this Court

ISSUE: Whether the petition for mandamus is proper.

ARGUMENTS:

Petitioner argues that she has a right to obtain copies of the examination papers so she can determine for herself why and how she failed and to ensure
that the Board properly performed its duties. She argues that the Constitution as well as the Code of Conduct and Ethical Standards for Public Officials
and Employees support her right to demand access to the Examination Papers. Furthermore, she claims that there was no need to exhaust
administrative remedies, since no recourse to the PRC was available, and only a pure question of law is involved in this case. Finally, she claims that her
demand for access to documents was not rendered moot by her passing of the 1998 CPA Board Exams.

HELD: NO.
RATIO:
Propriety of Writ of Mandamus

At the very outset let us be clear of our ruling. Any claim for re-correction or revision of her 1997 examination cannot be compelled by
mandamus. This much was made evident by our ruling in Agustin-Ramos v. Sandoval,[31] where we stated:

After deliberating on the petition in relation to the other pleadings filed in the proceedings at bar, the Court resolved to DENY said
petition for lack of merit. The petition at bar prays for the setting aside of the Order of respondent Judge dismissing petitioners
mandamus action to compel the other respondents (Medical Board of Examiners and the Professional Regulation Commission) to
reconsider, recorrect and/or rectify the board ratings of the petitioners from their present failing grades to higher or passing marks.
The function of reviewing and re-assessing the petitioners answers to the examination questions, in the light of the facts
and arguments presented by them x x x is a discretionary function of the Medical Board, not a ministerial and mandatory
one, hence, not within the scope of the writ of mandamus. The obvious remedy of the petitioners from the adverse judgment by
the Medical Board of Examiners was an appeal to the Professional Regulation Commission itself, and thence to the Court of
Appeals; and since they did not apply for relief to the Commission prior to their institution of the special civil action of mandamus in
the Regional Trial Court, the omission was fatal to the action under the familiar doctrine requiring exhaustion of administra tive
remedies. Apart from the obvious undesirability of a procedure which would allow Courts to substitute their judgment for that of
Government boards in the determination of successful examinees in any administered examination an area in which courts have n o
expertise and the circumstance that the law declares the Court of Appeals to be the appropriate review Court, the Regional Trial
Court was quite correct in refusing to take cognizance of an action seeking reversal of the quasi-judicial action taken by the Medical
Board of Examiners.[32] (Emphasis ours)

For a writ of mandamus to issue, the applicant must have a well-defined, clear, and certain legal right to the thing demanded. The
corresponding duty of the respondent to perform the required act must be equally clear.[33] No such clarity exists here; neither does petitioners
right to demand a revision of her examination results. And despite petitioners assertions that she has not made any demand for re-correction,
the most cursory perusal of her Second Amended Petition and her prayer that the respondents make the appropriate revisions on the results of
her examination belies this claim.

Like the claimants in Agustin, the remedy of petitioner from the refusal of the Board to release the Examination Papers should have
been through an appeal to the PRC. Undoubtedly, petitioner had an adequate remedy from the Boards refusal to provide her with
copies of the Examination Papers. Under Section 5(a) of Presidential Decree No. 223,[34] the PRC has the power to promulgate rules and
regulations to implement policies for the regulation of the accounting profession.[35] In fact, it is one such regulation (PRC Resolution No. 338)
that is at issue in this case. In addition, under Section 5(c), the PRC has the power to review, coordinate, integrate and approve the policies,
resolutions, rules and regulations, orders or decisions promulgated by the various Boards with respect to the profession or o ccupation under
their jurisdictions including the results of their licensure examinations but their decisions on administrative cases shall be final and executory
unless appealed to the Commission within thirty (30) days from the date of promulgation thereof.

Petitioner posits that no remedy was available because the PRCs power to review and approve in Section 5(c) only refers to appeals in
decisions concerning administrative investigations and not to instances where documents are being requested. Not only is this position myopic
and self-serving, it is bereft of either statutory or jurisprudential basis. The PRCs quasi-legislative and enforcement powers, encompassing
its authority to review and approve policies, resolutions, rules and regulations, orders, or decisions cover more than administrative
investigations conducted pursuant to its quasi-judicial powers.[37] More significantly, since the PRC itself issued the resolution
questioned by the petitioner here, it was in the best position to resolve questions addressed to its area of expertise . Indeed,
petitioner could have saved herself a great deal of time and effort had she given the PRC the opportunity to rectify any purported
errors committed by the Board.

One of the reasons for exhaustion of administrative remedies is our well-entrenched doctrine on separation of powers, which enjoins upon the
Judiciary a becoming policy of non-interference with matters falling primarily (albeit not exclusively) within the competence of other
departments.[38] Courts, for reasons of law, comity and convenience, should not entertain suits unless the available administrative remedies
have first been resorted to and the proper authorities have been given an appropriate opportunity to act and correct their alleged errors, if any,
committed in the administrative forum.

However, the principle of exhaustion of administrative remedies is subject to exceptions, among which is when only a question of law is
involved.[40] This is because issues of law such as whether petitioner has a constitutional right to demand access to the Examination Papers -
cannot be resolved with finality by the administrative officer.

Issues of Mootness

We now turn to the question of whether the petition has become moot in view of petitioners having passed the 1998 CPA examina tion. An
issue becomes moot and academic when it ceases to present a justiciable controversy, so that a declaration on the issue would be of no
practical use or value.

In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right to information and may seek its
enforcement by mandamus.[43] And since every citizen possesses the inherent right to be informed by the mere fact of
citizenship,[44] we find that petitioners belated passing of the CPA Board Exams does not automatically mean that her interest in the
Examination Papers has become mere superfluity. Undoubtedly, the constitutional question presented, in view of the likelihood that the
issues in this case will be repeated, warrants review.

The crux of this case is whether petitioner may compel access to the Examination Documents through mandamus. As always, our inquiry must
begin with the Constitution. Section 7, Article III provides:

Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions, as well to government research data used as ba sis for
policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Together with the guarantee of the right to information, Section 28, Article II promotes full disclosure and transparency in government, viz:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.

Like all the constitutional guarantees, the right to information is not absolute. The people's right to information is limited to "matters of public
concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest," and is "subject to reasonable conditions prescribed by law". The Court has always grappled with the
meanings of the terms "public interest" and "public concern." As observed in Legaspi v. Civil Service Commission:[46]

In determining whether x x x a particular information is of public concern there is no rigid test which can be applied. "Public concern"
 like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest
or importance, as it relates to or affects the public.

We have also recognized the need to preserve a measure of confidentiality on some matters, such as national security, trade secrets and
banking transactions, criminal matters, and other confidential matters.[47]

We are prepared to concede that national board examinations such as the CPA Board Exams are matters of public concern. The
populace in general, and the examinees in particular, would understandably be interested in the fair and competent administration of
these exams in order to ensure that only those qualified are admitted into the accounting profession. And as with all matters
pedagogical, these examinations could be not merely quantitative means of assessment, but also means to further improve the
teaching and learning of the art and science of accounting.

On the other hand, we do realize that there may be valid reasons to limit access to the Examination Papers in order to properly administer the
exam. More than the mere convenience of the examiner, it may well be that there exist inherent difficulties in the preparation, generation,
encoding, administration, and checking of these multiple choice exams that require that the questions and answers remain confidential for a
limited duration. However, the PRC is not a party to these proceedings. They have not been given an opportunity to explain the reasons behind
their regulations or articulate the justification for keeping the Examination Documents confidential. In view of the far-reaching implications of
this case, which may impact on every board examination administered by the PRC, and in order that all relevant issues may be ventilated, we
deem it best to remand these cases to the RTC for further proceedings.
DISPOSITIVE: IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11, 2006 and February 16, 2004 Decisions of the Court of
Appeals in CA-GR SP No. 76546 and CA-GR SP No. 76498, respectively, are hereby SET ASIDE. The November 11, 2002 and January 30, 2003
Orders of the Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED. The case is remanded to the Regional Trial Court
for further proceedings. SO ORDERED.
108 BAYAN vs. ERMITA AUTHOR:
G.R. No. 169838 April 25, 2006 NOTES:
TOPIC: Freedom of assembly
PONENTE:

FACTS:

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines
and that their rights as organizations and individuals were violated when the rally they participated in on October 6,
2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848, who allege that
they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was
preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they
participated in marched to Malacañang to protest issuances of the Palace which, they claim, put the country under
an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested
and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881, allege that they conduct
peaceful mass actions and that their rights as organizations and those of their individual members as citizens,
specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated
Preemptive Response" (CPR) being followed to implement it.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and
14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally"
policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The
Government [And] For Other Purposes

xxxx

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass
or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an
opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether
political, economic or social; or petitioning the government for redress of grievances.

xxxx

The definition herein contained shall not include picketing and other concerted action in strike areas by
workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules
and regulations, and by the Batas Pambansa Bilang 227.

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace
keeping authorities shall observe during a public assembly or in the dispersal of the same.

xxx
Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons
to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly
shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case
only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall be subject to the rules and regulations of said
educational institution. Political meetings or rallies held during any election campaign period as provided for by law
are not covered by this Act.

xxx

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is
clear and convincing evidence that the public assembly will create a clear and present danger to public order,
public safety, public convenience, public morals or public health.

xxx

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the applicant who must be heard on the
matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his
permit, the applicant may contest the decision in an appropriate court of law.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the
holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters
away from the area of activity ready to maintain peace and order at all times.

Sec. 10. Police assistance when requested. – xxx. Towards this end, law enforcement agencies shall observe the
following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete
uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped
with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin
guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the
public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of
property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However,
when an assembly becomes violent, the police may disperse such public assembly as follows:

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit
where a permit is required, the said public assembly may be peacefully dispersed.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this
Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any
time without the need of any prior permit.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in
Annex "A" to the Petition in G.R. No. 169848, thus:

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation,
sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the
local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard
and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and
demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not
stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions
that are inimical to public order, and the peace of mind of the national community.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a
signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence
or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly form part of the message for which the expression is
sought. xxx.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right
to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that
right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their
dispersal. Thus, its provisions are not mere regulations but are actually prohibitions.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838
should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there
was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v.
Bagatsing,11 Primicias v. Fugoso,and Jacinto v. CA, have affirmed the constitutionality of requiring a permit; that the
permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based
regulation because it covers all rallies.
ISSUE(S):

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a)
thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

 (d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration of Human
Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?

HELD: BP 880 is valid; CPR is void.

RATIO:
1.Freedom to engage in peaceful assembly

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and
exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a
permit for all who would publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in
public assemblies without the required permits to press their claim that no such permit can be validly required without
violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to
law and dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with
freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional democratic polity, without which all the other
rights would be meaningless and unprotected

2. Jurisprudence says:

It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment

it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not
absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights,
nor injurious to the rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities
and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.

There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present
danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion of matters of public concen xxx . The sole justification for a
limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of
a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

But utterance in a context of violence can lose its significance as an appeal to reason and become part of an
instrument of force. xxx. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One
may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. xxx It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is to make a mockery of
the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would start. xxx Whenever the title of streets and parks may rest,
they have immemorially been held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing public questions

3. The provisions of B.P. No. 880 practically codify the ruling in Reyes:

By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the
date, the public place where and the time when it will take place. If it were a private place, only the consent of the
owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to
enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the
judiciary, -- even more so than on the other departments – rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense
with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy.

4. BP 880 is constitutional

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that
would use public places. The reference to "lawful cause" does not make it content-based because assemblies really
have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the
words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer
to any subject. The words "petitioning the government for redress of grievances" come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety,
public convenience, public morals or public health. This is a recognized exception to the exercise of the right even
under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. Not every expression of
opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of
mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and
present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec.
6(c) substantially means the same thing and is not an inconsistent standard

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of
freedom parks where no prior permit is needed for peaceful assembly and petition at any time:

Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the
people’s exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty
(30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public
park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For
without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should,
however, be given to the authorities to ensure proper coordination and orderly proceedings.

Maximum tolerance specifically means following sec 3©, sec 9,10,11,12,and 13 (see provisions)

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on
applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is
immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists
who can show the police an application duly filed on a given date can, after two days from said date, rally in
accordance with their application without the need to show a permit, the grant of the permit being then presumed
under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in
which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the
law.

, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to
issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard.
CASE LAW/ DOCTRINE:
DISSENTING/CONCURRING OPINION(S):
109. IBP vs. Mayor Atienza AUTHOR: Revy Neri
GR. No. 175241; February 24, 2010 NOTES:
TOPIC:
PONENTE: Carpio Morales, J.

FACTS:
1. The IBP, through its then National President Cadiz, filed with the Office of the City of Mayor of Manila a letter
application for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 to 5:30 pm to be
participated in by IBP officers and members, law students and multi-sectoral organizations.
2. Respondent issued a permit allowing the IBP to stage a rally on given date but indicated Plaza Miranda as the
venue, instead of Mendiola Bridge, which permit the IBP received on June 19, 2006.
3. Petitioners filed before the Court of Appeals a petition for certiorari.
4. The petition for certiorari been unresolved within 24 hours from its filing, petitioners filed before this Court a
petition for certiorari which assailed the appellate court’s inaction or refusal to resolved the petition within the
period provided under the Public Assembly Act of 1985.
5. The Court denied the petition for being moot and academic, denied the relief that the petition be heard on the
merits in view of pendency of case and denied the motion for reconsideration.
6. The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Paglinawan
whose contingent from the MPD earlier barred petitioners from proceeding thereto.
7. Petitioners allege that the participants voluntarily dispersed after the peaceful conduct of the program
8. MPD instituted a criminal action against Cadiz for violating the Public Assembly Act in staging a rally at a venue
not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit.
9. Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment which
merited petitioners’ Reply.

ISSUE(S): WON the appellate court erred in holding that the modification of the venue in IBP’s rally permit does not
constitute grave abuse of discretion.
HELD: YES.

RATIO:

In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP
who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may
warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may
directly go to court after an unfavorable action on the permit.

Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and
present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued
permit adverts to an imminent and grave danger of a substantive evil, which "blank" denial or modification would, when
granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.

It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determ ining whether or not a
permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the
assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."

Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and
caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. It is
thus reversible error for the appellate court not to have found such grave abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory to the applicant."
 AUTHOR: Bea Mationg
110 GSIS and WINSTON F. GARCIA vs. NOTES: (if applicable)
VILLAVIZA

TOPIC: Administrative Due Process

PONENTE: Mendoza, J.
FACTS: (chronological order) Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed
separate formal charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico A. Echavez, Rodel Rubio, Rowena
Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for Grave Misconduct and/or Conduct Prejudicial to the Best Interest
of the Service pursuant to the Rules of Procedure in Administrative Investigation (RPAI) of GSIS Employees and Officials, III, D,
(1, c, f) in relation to Section 52A (3), (20), Rule IV, of the Uniform Rules on Administrative Cases in the Civil Service (U RACCS),
in accordance with Book V of the Administrative Code of 1987, committed as follows:

Respondent, wearing red shirt together with some employees, marched to or appeared simultaneously at or just
outside the office of the Investigation Unit in a mass demonstration/rally of protest and support for Messrs. Mario Molina and
Albert Velasco, the latter having surreptitiously entered the GSIS premises;

That some of these employees badmouthed the security guards and the GSIS management and
defiantly raised clenched fists led by Atty. Velasco who was barred by Hearing Officer Marvin R. Gatpayat in an
Order dated 24 May 2005 from appearing as counsel for Atty. Molina pursuant to Section 7 (b) (2) of R.A.
6713 otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees;

That respondent, together with other employees in utter contempt of CSC Resolution No. 021316,
dated 11 October 2002, otherwise known as Omnibus Rules on Prohibited Concerted Mass Actions in the
Public Sector caused alarm and heightened some employees and disrupted the work at the Investigation Unit
during office hours.

This episode was earlier reported to PGM Garcia, through an office memorandum dated May 31, 2005, by the Manager
of the GSIS Security Department (GSIS-SD), Dennis Nagtalon. On the same day, the Manager of the GSIS Investigation Unit (GSIS-
IU), Atty. Lutgardo Barbo, issued a memorandum to each of the seven (7) respondents requiring them to explain in writing and
under oath within three (3) days why they should not be administratively dealt with.

RESPONDENTS’ CONTENTIONS: Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two
others, submitted a letter-explanation denying that there was a planned mass action, the respondents explained that their act
of going to the office of the GSIS-IU was a spontaneous reaction after learning that their former union president was
there. Aside from some of them wanting to show their support, they were interested in that hearing as it might also affect
them. For her part, respondent Villaviza submitted a separate letter explaining that she had a scheduled pre -hearing at the
GSIS-IU that day and that she had informed her immediate supervisor about it, attaching a copy of the order of pre -
hearing. These letters were not under oath.

PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or Conduct Prejudicial to the
Best Interest of the Service against each of the respondents.

PGM Garcia: issued decisions finding all seven (7) respondents guilty of the charges and meting out the penalty of one
(1) year suspension plus the accessory penalties appurtenant thereto.

CSC: found the respondents guilty of the lesser offense of Violation of Reasonable Office Rules and Regulations and
reduced the penalty to reprimand. The CSC ruled that respondents were not denied their right to due process but there was no
substantial evidence to hold them guilty of Conduct Prejudicial to the Best Interest of the Service. Instead,

x x x. The actuation of the appellants in going to the IU, wearing red shirts, to witness a public hearing
cannot be considered as constitutive of such offense. Appellants (respondents herein) assembly at the said
office to express support to Velasco, their Union President, who pledged to defend them against any oppression
by the GSIS management, can be considered as an exercise of their freedom of expression, a constitutionally
guaranteed right.
CA: Upheld the CSC’s decision.

ISSUE(S): Petitioners primarily question the probative value accorded to respondents letters of explanation in
response to the memorandum of the GSIS-IU Manager.
HELD: Petition is denied. CA decision is affirmed.
 RATIO: The respondents never filed their answers to the formal charges. The petitioners argue that there being no
answers, the allegations in the formal charges that they filed should have been deemed admitted pursuant to Section 11, Rule 8
of the Rules of Court which provides:

SECTION 11. Allegations not specifically denied deemed admitted. Material averment in the complaint,
other than those as to the amount of liquidated damages, shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied
specifically and under oath.

According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1, Section 4 of the Rules of
Court which reads:

SECTION 4. In what cases not applicable. These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by
analogy or in a suppletory character and whenever practicable and convenient. (underscoring supplied)

The Court does not subscribe to the argument of the petitioners. Petitioners own rules, Rule XI, Section 4 of the
GSIS Amended Policy and Procedural Guidelines No. 178-04, specifically provides:

If the respondent fails to file his Answer within five (5) working days from receipt of the Formal
Charge for the supporting evidence, when requested, he shall be considered to have waived his right to file an
answer and the PGM or the Board of Trustees, in proper cases, shall render judgment, as may be warranted by
the facts and evidence submitted by the prosecution.

A perusal of said section readily discloses that the failure of a respondent to file an answer merely translates to a
waiver of his right to file an answer. There is nothing in the rule that says that the charges are deemed admitted. It has not done
away with the burden of the complainant to prove the charges with clear and convincing evidence.

It is true that Section 4 of the Rules of Court provides that the rules can be applied in a suppletory character.
Suppletory is defined as supplying deficiencies. It means that the provisions in the Rules of Court will be made to apply only
where there is an insufficiency in the applicable rule. There is, however, no such deficiency as the rules of the GSIS are explicit
in case of failure to file the required answer. What is clearly stated there is that GSIS may render judgment as may be warranted
by the facts and evidence submitted by the prosecution.

Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case, petitioners must remember
that there remain averments that are not deemed admitted by the failure to deny the same. Among them are immaterial
allegations and incorrect conclusions drawn from facts set out in the complaint.Thus, even if respondents failed to file their
answer, it does not mean that all averments found in the complaint will be considered as true and correct in their entirety , and
that the forthcoming decision will be rendered in favor of the petitioners. We must not forget that even in administrative
proceedings, it is still the complainant, or in this case the petitioners, who have the burden of proving, with substantial
evidence, the allegations in the complaint or in the formal charges.

A perusal of the decisions of the CA and of the CSC will reveal that the case was resolved against petitioners based, not
on the absence of respondents evidence, but on the weakness of that of the petitioners. Thus, the CA wrote:

Petitioners correctly submitted the administrative cases for resolution without the respondents
respective answer to the separate formal charges in accordance with Section 4, Rule XI of the RPAI. Being in
full control of the administrative proceeding and having effectively prevented respondents from further
submitting their responsive answer and evidence for the defense, petitioners were in the most advantageous
position to prove the merit of their allegations in the formal charges. When petitioner Winston Garcia issued
those similarly worded decisions in the administrative cases against the respondents, it is presumed that all
evidence in their favor were duly submitted and justly considered independent of the weakness of
respondents evidence in view of the principle that the burden of proof belongs to the one who alleges and not
the one who denies.

On the merits, what needs to be resolved in the case at bench is the question of whether or not there was a violation of
Section 5 of CSC Resolution No. 02-1316. Stated differently, whether or not respondents actions on May 27, 2005 amounted to a
prohibited concerted activity or mass action. Pertinently, the said provision states:

Section 5. As used in this Omnibus Rules, the phrase prohibited concerted activity or mass action shall
 be understood to refer to any collective activity undertaken by government employees, by themselves or
through their employees organizations, with intent of effecting work stoppage or service disruption in order
to realize their demands of force concession, economic or otherwise, from their respective agencies or the
government. It shall include mass leaves, walkouts, pickets and acts of similar nature. (underscoring supplied)

In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red shirts to witness a public
hearing do not amount to a concerted activity or mass action proscribed above. CSC even added that their actuations can be
deemed an exercise of their constitutional right to freedom of expression. The CA found no cogent reason to deviate therefrom.

As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political rights of those in the
government service, the concerted activity or mass action proscribed must be coupled with the intent of effecting work
stoppage or service disruption in order to realize their demands of force concession. Wearing similarly colored shirts, attending
a public hearing at the GSIS-IU office, bringing with them recording gadgets, clenching their fists, some even badmouthing the
guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work stoppage or service disruption and (ii) for the
purpose of realizing their demands of force concession.

Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are there to temper and
focus the application of such prohibition. Not all collective activity or mass undertaking of government employees is prohibited.
Otherwise, we would be totally depriving our brothers and sisters in the government service of their constitutional right to
freedom of expression. Government workers, whatever their ranks, have as much right as any person in the land to voice out
their protests against what they believe to be a violation of their rights and interests. Civil Service does not deprive them of
their freedom of expression. It would be unfair to hold that by joining the government service, the members thereof have
renounced or waived this basic liberty. This freedom can be reasonably regulated only but can never be taken away.

A review of PGM Garcias formal charges against the respondents reveals that he himself was not even certain whether
the respondents and the rest of the twenty or so GSIS employees who were at the GSIS-IU office that fateful day marched there
or just simply appeared there simultaneously.[14] Thus, the petitioners were not even sure if the spontaneous act of each of the
twenty or so GSIS employees on May 27, 2005 was a concerted one. The report of Manager Nagtalon of the GSIS-SD which was
the basis for PGM Garcias formal charges reflected such uncertainty. Thus,

Of these red shirt protesters, only Mr. Molina has official business at the Investigation Unit during this
time. The rest abandoned their post and duties for the duration of this incident which lasted until 10:55 A.M. It
was also observed that the protesters, some of whom raised their clenched left fists, carefully planned this
illegal action as evident in their behavior of arrogance, defiance and provocation, the presence of various
recording gadgets such as VCRs, voice recorders and digital cameras, the bad mouthing of the security guards
and the PGM, the uniformity in their attire and the collusion regarding the anomalous entry of Mr. Albert
Velasco to the premises as reported earlier. [

The said report of Nagtalon contained only bare facts. It did not show respondents unified intent to effect disruption or
stoppage in their work. It also failed to show that their purpose was to demand a force concession.

Thus, respondents freedom of speech and of expression remains intact, and CSCs Resolution No. 02-1316 defining
what a prohibited concerted activity or mass action has only tempered or regulated these rights. Measured against that
definition, respondents actuations did not amount to a prohibited concerted activity or mass action. The CSC and the CA were
both correct in arriving at said conclusion.
CASE LAW/ DOCTRINE:

DISSENTING/CONCURRING OPINION(S):
111 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.FEDERICO AUTHOR: Yayie Lanting
LUCERO, Accused-Appellant NOTES: (if applicable)
G.R. No. 188705 March 2, 2011
PONENTE: VELASCO, JR., J.
FACTS: (chronological order)
1. Before the RTC, the accused Lucero was charged with the crime of Rape with Homicide

2.The accused testified in his defense, saying that he had been a resident of XXX, Tagum, Davao del Norte since February 2,
1997, and that he had been invited by the police for questioning at 11:00 a.m. on June 7, 1997. He had been slicing ampalaya in
the kitchen when the police arrived, and when he asked what they wanted with him, he was told to just accompany them to the
police station. He put down his knife, but PO2 Gurrea picked it up, and then the accused was brought to the police station. He
was handcuffed and brought to the comfort room where he was told that if he did not admit to killing AAA, he would be beaten
to death. He was also subjected to electric shock. He then confessed to the killing, even if he did not commit the crime. The
accused stated that he was not informed of his right to remain silent or to be assisted by counsel. After his confession, he was
mauled by AAA’s brother and father. He was then brought back to his rented room, which PO2 Gurrea searched, finding a knife
which he brought back to the police station, along with the accused. The accused was then locked in a prison cell where the other
prisoners beat him up. The next day, he was visited by his elder brother, Dionisio Lucero, to whom he said that he wanted to be
medically examined, but Dionisio was told by the police not to interfere in the case.

3. RTC: found the accused guilty

4. In his appeal to the CA, the accused questioned the identification of him made by witnesses Jao and Langgoy, and assailed the
trial court’s appreciation of the allegedly illegally-obtained evidence.

5. CA: upheld the accused’s conviction

 found that enough circumstantial evidence was present to convict the accused.
 held that the extrajudicial confession made by the accused to PO2 Gurrea was inadmissible since the accused was
deprived of his right to counsel when he was questioned. The bloodied shirt and knife that were found in the room of the
accused were also held to be inadmissible, being "fruits of the poisonous tree."
ISSUE(S): Whether or not Lucero is guilty?
HELD: YES
RATIO:
The CA correctly disregarded the confession by accused-appellant Lucero, as well as the evidence gained by searching his room.

Among the evidence considered by the RTC during the trial were a blood-stained white t-shirt and knife found in the room of
accused-appellant. However, these items were the result of a search conducted after accused-appellant had been questioned
without the presence of counsel, nor had accused-appellant been apprised of his rights.

The testimony of PO2 Gurrea is quite informative:

Q It was you who conducted the investigation?
A Yes, sir.
Q When you investigated the accused, you did not inform the accused that he had the right to remain silent? Did you?
A No, sir. We did not inform him of his right, but we directly questioned him.
Q And also, you did not inform the accused that whatever he would answer to your question that he would give will be used against him in the court
of law? Did you?
A I did not tell him.
Q And also, you did not inform the accused at that time that he would have the right to get counsel of his own choice?
A We did not inform him.
Q And also, you did not inform the accused that he would have the right not to be compelled to answer any of your question? Did you?
A No, sir. When we asked, he immediately answered the question.

Accused-appellant was not informed of his rights, nor was there a waiver of said rights. Thus, the information elicited is
inadmissible, and the evidence garnered as the result of that interrogation is also inadmissible. This parallels Aballe v.
People, wherein the accused in that case was questioned without the presence of counsel, and later produced the weapon used in
killing the victim, also making an extrajudicial confession admitting his guilt. In that particular case, it was held, "Together with
the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirmed interrogation and must consequently be
disallowed."

It is clear that the questioning of accused-appellant was made in violation of Section 12(1), Article III of the 1987
Constitution, which reads:
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the presence of counsel.

Thus, the trial court erred in considering the knife and bloodied t-shirt when they are inadmissible, which is what the CA
correctly concluded.

But even if the confession and evidence gathered as a result of it are disregarded, the evidence that remains still supports the
result of the conviction of accused-appellant.

Here, there are no direct witnesses to the crime. But even if no one saw the commission of the crime, accused-appellant may still
be pinned down as the perpetrator. As held in Salvador v. People:
Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a
trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of
facts from which the facts in issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct
testimony would, in many cases, result in setting felons free and deny proper protection to the community.

In this particular case, with this particular crime, it is the circumstantial evidence that comes into play to reach a conclusion.

Under Sec. 4, Rule 133 of the Rules of Court, circumstantial evidence shall be sufficient for conviction when the following
requisites are complied with: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are
proved; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
Salvador also held:

All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent. Thus, conviction based on circumstantial evidence can be upheld,
provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that point
to the accused, to the exclusion of all others, as the guilty person.

Even as the circumstances lead to the inevitable conclusion that accused-appellant committed the crime, he claims that since
spermatozoa was found on the deceased, a DNA test should have been conducted by the prosecution so as to erase all doubts as
to the identity of the perpetrator.

It is not for accused-appellant to determine which evidence or testimony the prosecution should present. In Loguinsa, Jr. v.
Sandiganbayan (5th Division), the Court stated, "Section 5, Rule 110 of the Revised Rules on Criminal Procedure expressly
provides that all criminal action shall be prosecuted under the direction and control of the fiscal and what prosecution evidence
should be presented during the trial depends solely upon the discretion of the prosecutor." The DNA test is not essential, while
there exists other evidence pinning down accused-appellant as the perpetrator. Indeed, if he honestly thought that the DNA test
could have proved his innocence, he could have asked for the conduct of said test during his trial, instead of belatedly raising it
on appeal, and attempting to dictate upon the prosecution what course of actions it should have undertaken.

In support of his argument, accused-appellant would debunk the identification by witnesses by citing People v. Faustino, which
stated: The identification of an accused by an eyewitness is a vital piece of evidence and most decisive of the success or failure of the
case for the prosecution. But even while significant, an eyewitness identification, which authors not infrequently would describe to be
"inherently suspect," is not as accurate and authoritative as the scientific forms of identification evidence like by fingerprint or by DNA
testing.

While a DNA test might have been more conclusive, the cited case did not mandate DNA testing in place of eyewitness
testimony. In that particular case, scientific forms of identification were held to be preferable over eyewitness testimony, as
pictures of the accused were what were presented for identification, so the testimony of the witness was tainted. The holding of a
DNA test was never in issue.

WHEREFORE, the CA Decision dated December 17, 2008 in CA-G.R. CR-H.C. No. 00469-MIN is AFFIRMED with
MODIFICATION as to the damages. Accused-appellant Federico Lucero is ordered to indemnify the heirs of AAA the amounts
of PhP 75,000 as civil indemnity; PhP 75,000 as moral damages; PhP 25,000 as temperate damages; and PhP 30,000 as
exemplary damages, all with interest at the legal rate of six percent (6%) per annum from the finality of this Decision until fully
paid.
CASE LAW/ DOCTRINE:
112 Ho Wai Pang v. Infraction of the rights of an accused during custodial investigation or the so-called Miranda
People, Rights render inadmissible only the extrajudicial confession or admission made during such
G.R. No. 176229, investigation. The admissibility of other evidence, provided they are relevant to the issue and
October 19, 2011 is not otherwise excluded by law or rules, is not affected even if obtained or taken in the
course of custodial investigation.
1. In 1991, 11:30 pm UAEmirates Airlines Flight from Hongkong arrived at the (NAIA). Among the passengers
were 13 Hongkong nationals who came to the Philippines as tourists.
2. At the arrival area, the group leader Sonny Wong presented a Baggage Declaration Form to Customs Examiner
Gilda L. Cinco (Cinco). Cinco examined the baggages of each of the 13 passengers as their turn came up.
3. She noticed chocolate boxes which were almost of the same size as those in the first bag. Becoming suspicious,
she took out four of the chocolate boxes and opened one of them and instead of chocolates, she saw white
crystalline substance contained in a white transparent plastic.
4. She immediately called the Narcotics Command (NARCOM) and the police. The tourists were sent to the
Intensive Counting Unit (ICU) while bringing with her the four chocolate boxes earlier discovered.
5. All in all, 18 chocolate boxes were recovered from the baggages of the six accused.
6. NARCOM Agent conducted a test on the white crystalline substance contained in said chocolate boxes at the
NAIA using the Mandelline Re-Agent Test. The result showed that it was shabu.
7. The 13 tourists were brought to the (NBI) for further questioning. The confiscated stuff’s total weight is
31.1126 kilograms. Out of the 13 tourists, the NBI found evidence for violation of R.A. No. 6425 only as
against petitioner and his five co-accused.
8. 6 separate Informations all were filed against petitioner and his co-accused. Petitioner filed a Motion for
Reinvestigation which the trial court granted.
9. The reinvestigation conducted gave way to a finding of conspiracy among the accused and this resulted to the
filing of a single Amended Information and the withdrawal of the other Information.
10. They all pleaded not guilty to the crime charged. They claimed that they have no knowledge about the
transportation of illegal substance (shabu) taken from their traveling bags which were provided by the travel
agency.
11. RTC: finding all the accused guilty of violating Section 15, Article III of R.A. No. 6425, as amended for having
conspired to transport into the Philippines 31.112 kilograms of methamp[h]etamine hydrochloride, locally
known as Shabu
12. CA: affirmed the Decision of the RTC. While conceding that petitioners constitutional right to counsel during
the custodial investigation was indeed violated, it nevertheless went on to hold that there were other
evidence sufficient to warrant his conviction
ISSUES:
1. WON CA ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION.
2. WON CA ERRED IN NOT CONSIDERING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
3. WON CA ERRED IN NOT FINDING THAT THE PROSECUTIONS EVIDENCE FAILED TO ESTABLISH THE
EXISTENCE OF A CONSPIRACY.
4. WON CA ERRED IN NOT FINDING THAT THE PROSECUTION FAILED TO PRESENT PROOF BEYOND
REASONABLE DOUBT AS TO OVERTURN THE PRESUMPTION OF INNOCENCE ACCORDED TO
PETITIONER BY THE CONSTITUTION
HELD: 1.) NO 2.) NO 3.) NO 4.) NO
RATIO: Issue 1: Section 12, Article III of the Constitution prohibits as evidence only confessions and admissions
of the accused as against himself. We must not lose sight of the fact that what said constitutional provision
prohibits as evidence are only confessions and admissions of the accused as against himself.

In Aquino v. Paiste, the Court categorically ruled that the infractions of the so-called Miranda rights render
inadmissible only the extrajudicial confession or admission made during custodial investigation. The
admissibility of other evidence, provided they are relevant to the issue and [are] not otherwise excluded by
law or rules, [are] not affected even if obtained or taken in the course of custodial investigation.

In the case at bench, petitioner did not make any confession or admission during his custodial investigation. The
prosecution did not present any extrajudicial confession extracted from him as evidence of his guilt. Hence,
petitioners claim that the trial court erred in not excluding evidence taken during the custodial investigation deserves
scant consideration. Verily, in determining the guilt of the petitioner and his co-accused, the trial court based its
Decision on the testimonies of the prosecution witnesses and on the existence of the confiscated shabu.
Petitioners conviction in the present case was on the strength of his having been caught in flagrante delicto
transporting shabu into the country and not on the basis of any confession or admission.
Petitioner cannot take refuge in this Courts ruling in People v. Wong Chuen Ming to exculpate himself from the crime
charged. Though there are semblance in the facts, the case of Ming is not exactly on all fours with the present case.
Apparently in Ming, the trial court, in convicting the accused, relied heavily on the signatures which they
affixed on the boxes of Alpen Cereals and on the plastic bags. The Court construed the accuseds act of affixing
their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their
Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having
been obtained in violation of their constitutional rights. Indeed, a ruling in one case cannot simply be bodily
lifted and applied to another case when there are stark differences between the two cases. Cases must be decided
based on their own unique facts and applicable law and jurisprudence.

ISSUE #2: Petitioner was not denied of his right to confrontation.

Petitioner invokes the pertinent provision of Section 14(2) of Article III of the 1987 Philippine Constitution providing
for the right to confrontation. Petitioner asserts that he was deprived of his right to know and understand what the
witnesses testified to. In refutation, the OSG countered that petitioner was given the opportunity to confront his
accusers and/or the witnesses of the prosecution when his counsel cross-examined them. We agree with the OSG.

Petitioner did not register any objection to the presentation of the prosecutions evidence particularly on the
testimony of Cinco despite the absence of an interpreter. It is petitioners call to hire an interpreter to
understand the proceedings before him and if he could not do so, he should have manifested it before the
court. Moreover, it has not been shown that the lack of an interpreter greatly prejudiced him. The important thing is,
petitioner, through counsel, was able to fully cross-examine Cinco and the other witnesses and test their credibility.
The right to confrontation is essentially a guarantee that a defendant may cross-examine the witnesses of the
prosecution. Petitioners constitutional right to confront the witnesses against him was not impaired.

ISSUE #3: Conspiracy among the accused was duly established

Conspiracy which determines criminal culpability need not entail a close personal association or at least an
acquaintance between or among the participants to a crime. It need not be shown that the parties actually
came together and agreed in express terms to enter into and pursue a common design. The assent of the minds
may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken
together, indicate that they are parts of some complete whole as we ruled in People v. Mateo, Jr. Here, it can be
deduced from petitioner and his co-accused’s collective conduct, viewed in its totality, that there was a
common design, concerted action and concurrence of sentiments in bringing about the crime committed.

ISSUE #4: Petitioners guilt was proved beyond reasonable doubt.

Finally, petitioner asserts that no chocolate boxes were found in his traveling bag when it was examined at the ICU. He
claimed that it was his co-accused Sonny Wong who took charge in ascribing upon him the possession of the two
chocolate boxes.

When principal prosecution witness, she declared that she did not see any chocolate boxes but only personal effects in
petitioner’s bag. Nonetheless, she clarified in her succeeding testimony that she recalls taking the two chocolate boxes
from petitioner’s bag when they were still at the counter. This sufficiently explained why Cinco did not find any
chocolate boxes from petitioner’s bag when they were at the ICU. To us, this slight clash in Cincos statements
neither dilute her credibility nor the veracity of her testimony.

Nothing else can speak so eloquently of his culpability than the unassailable fact that he was caught red-handed in the
very act of transporting, along with his co-accused, shabu into the country. Also, the act of transporting a prohibited
drug is a malum prohibitum because it is punished as an offense under a special law. As such, the mere commission of
the act is what constitutes the offense punished and same suffices to validly charge and convict an individual caught
committing the act so punished regardless of criminal intent.

Penalty: Penalty of imprisonment, which is reclusion perpetua, as well as the amount of fine imposed by the trial
court upon petitioner, the same being more favorable to him.
113. People vs. Lauga AUTHOR: Revy Neri
GR. No. 186228; March 15, 2010 NOTES:
TOPIC:
PONENTE: Perez, J.

FACTS:
1. The appellant was accused of the crime of Qualified Rape.
2. The appellant entered a plea of not guilty
3. During the pre-trial conference, the prosecution and the defense stipulated and admitted: a.) the correctness of the
findings indicated in the medical certificate of the physician who examined AAA; b.) that AAA was only 13 years
old when the alleged offense was committed; and c.) that AAA is the daughter of the appellant.
4. The testimonies revealed that AAA was left alone at home and AAA’s father, the appellant, was having a drinking
spree at the neighbors place.
5. Her mother decided to leave because when appellant gets drunk, he has the habit of mauling AAA’s mother.
6. Her only brother BBB also went out in the company of some neighbors.
7. Appellant woke AAA up; removed his pants, slid inside the blanket covering AAA and removed her pants and
underwear warned her not to shout for help while threatening her with his fist; and told her that he had a knife
placed above her head.
8. He proceeded to mash her breast, kiss her repeatedly, and inserted his penis inside her vagina.
9. BBB arrived and found AAA crying. Appellant claimed he scolded her for staying out late.
10. BBB decided to take AAA with him.
11. While on their way to their maternal grandmothers house, AAA recounted her harrowing experience with their
father.
12. Upon reaching their grandmothers house, they told their grandmother and uncle of the incident, after which, they
sought the assistance of Moises Boy Banting.
13. Moises Boy Banting found appellant in his house wearing only his underwear.
14. He invited appellant to the police station, to which appellant obliged.
15. At the police outpost, he admitted to him that he raped AAA because he was unable to control himself.

ISSUE(S): WON the extrajudicial confession of appellant to Moises, who is a bantay bayan in the barangay, is admissible
in evidence.
HELD: NO. We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel, inadmissible
in evidence.

RATIO:
Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a bantay bayan, the confession was
inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such requirement .

The case of People v. Malngan is the authority on the scope of the Miranda doctrine provided for under Article
III, Section 12(1) and (3) of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial
confessions given to the barangay chairman and a neighbor of the private complainant. This Court distinguished. Thus:

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law
enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused -
appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only
one, in the fire that destroyed several houses x x x. She was, therefore, already under custodial investigation and the right s
guaranteed by x x x [the] Constitution should have already been observed or applied to her. Accused-appellants confession
to Barangay Chairman x x x was made in response to the interrogation made by the latter admittedly conducted without
first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason,
the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter found x x x in her bag are
inadmissible in evidence against her x x x.

[But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial investigations
do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner
whereby the accused verbally admits x x x as x x x in the case at bar when accused-appellant admitted to Mercedita
Mendoza, one of the neighbors x x x [of the private complainant].
Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a bantay
bayan may be deemed a law enforcement officer within the contemplation of Article III, Section 12 of the Constitution.

In People of the Philippines v. Buendia, this Court had the occasion to mention the nature of a bantay bayan,
that is, a group of male residents living in [the] area organized for the purpose of keeping peace in their community[,which
is] an accredited auxiliary of the x x x PNP.

Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309 issued on 11
November 1987, as amended, a Peace and Order Committee in each barangay shall be organized to serve as implementing
arm of the City/Municipal Peace and Order Council at the Barangay level. The composition of the Committee includes,
among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of
the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-
Crime or neighborhood Watch Groups or a Non Government Organization Representative well-known in his
community.

This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the
case of the bantay bayan, are recognized by the local government unit to perform functions relating to the preservation of
peace and order at the barangay level. Thus, without ruling on the legality of the actions taken by Moises Boy Banting,
and the specific scope of duties and responsibilities delegated to a bantay bayan, particularly on the authority to conduct a
custodial investigation, any inquiry he makes has the color of a state-related function and objective insofar as the
entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise
known as the Miranda Rights, is concerned.

Here, the testimony of AAA does not run contrary to that of BBB. Both testified that they sought the help of a
bantay bayan. Their respective testimonies differ only as to when the help was sought for, which this Court could well
attribute to the nature of the testimony of BBB, a shortcut version of AAAs testimony that dispensed with a detailed
account of the incident.

At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial to affect the veracity of
the testimonies. In fact, inconsistencies which refer to minor, trivial or inconsequential circumstances even strengthen the
credibility of the witnesses, as they erase doubts that such testimonies have been coached or rehearsed.

The presence of the qualifying circumstances of minority and relationship with the offender in the instant case has likewise
been adequately established. Both qualifying circumstances were specifically alleged in the Information, stipulated on and
admitted during the pre-trial conference, and testified to by both parties in their respective testimonies. Also, such
stipulation and admission, as correctly pointed out by the Court of Appeals, are binding upon this Court b ecause they are
judicial admissions within the contemplation of Section 4, Rule 129 of the Revised Rules of Court.

CASE LAW/ DOCTRINE:

DISSENTING/CONCURRING OPINION(S):