CONSTITUTIONAL ISSUES

ARISING FROM THE ONGOING

POLITICAL CRISIS IN THE
PHILIPPINES
H. Harry L. Roque, Jr.
Director, Institute of International Legal Studies (IILS)
University of the Philippines
The “Hello Garci” controversy has led to unresolved
constitutional controversies in the Philippines
 Relevant points evidenced by the recordings include:
a) An order from the female voice to delay the senatorial canvassing;
b) An inquiry from the female voice whether election returns results and
statement of votes correspond with each other in the Province of Sulu;
c) A confirmation that the military may be used in partisan political
activity;
d) A query from the female voice whether her lead of 1 Million votes will
be achieved;
e) A query from the female voice what happened to the padded votes
(yung dagdag, yung dagdag);
f) An instruction from the female voice that the election returns and the
statements of votes in Basilan should match each other;
 Relevant points evidenced by the recordings include:
g) An information relayed to the female voice that a certain General
Lomibao will take charge of operations in Zamboanga and that a
general Guidani has not been cooperative in Maranaw;
h) A concern from the female voice about a certain Rashma Hali giving
evidence of election fraud and a reply from the male voice that said
person will be abducted to “control her”;
i) An order from the female voice to deal with canvassing problems in
Mindanao and to make sure that the elections for President is not
affected.
 The President admitted talking to an
Elections Official to “protect her votes”, an
act which she apologized for after
acknowledging the same to be “a serious
lapse in judgment.
 An Amended impeachment Complaint was then filed against
the President principally on the ground that her admission and
the “Hello Garci” controversy were evidence of both “culpable
violations of the constitution” and “betrayal of public trust”.
Other grounds included in the amended impeachment
complaint were: betrayal f public trust for the attempted cover-
up of the “hello garci” tape by the Press Secretary and human
rights abuses committed her regime; Bribery for attempting to
extort from Fraport, the proponent of Terminal Three and
failing which, causing the declaration of the contract as being
void; Graft and Corruption: for entering into the Northrail
contract which is contrary to law for lack of public bidding and
grossly disadvantageous to the government; accepting
jueteng payola and using the same for her 2004 elections bid
 Using public funds for partisan activities such as :
Philhealth, the Road Users Tax, and the Ginintuang
Masaganang Ani (GMA).
 The foregoing amended impeachment complaint was
dismissed by the House of representatives on the basis of
two prejudicial questions, to wit: that it was a different
complaint from the original impeachment complaint filed
by lawyer Oliver Lozano; and consequently, pursuant to
Roque vs. de Venecia and House of Representatives, it is
barred for being violative of the one impeachment
proceeding per year rule on Art. XI,(3) 5 of the 1987
Constitution.
First Issue: Does Art. XI (3)5 and Roque vs. De Venecia bar the
amended Impeachment Complaint? Current Petition argues it
does not on the following grounds:

a) Being an “amended impeachment complaint”, it supersedes the original

Lozano Complaint;
b) Amendments are allowed as a matter of right pursuant to the Rules on
Criminal Procedure which has suppletory application under the Rules of
Impeachment adopted by the House of Representatives;
c) Assuming that the Lozano Complaint is different from the amended Complaint,
the original complaint, not being in verified form, is nothing but a scrap of
paper;
d) Under Art. XI (3) 5 of the 1987 Constitution, what is prohibited are multiple
PROCEEDINGS and not multiple complaints.
e) The procedure adopted by the House in addressing so-called “prejudicial
question” is unconstitutional and contrary to the rules of the House and should
thus be declared as null and void.
Second Issue: Assuming the Supreme Court rules in favor of the
Petition challenging the act of the House of Representatives,
could the “Hello Garci” tapes be admissible in evidence before
the Senate sitting as an impeachment court

a) “SEC. 3.
(1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety
or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
b) 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 as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.”
Second Issue: Assuming the Supreme Court rules in favor of the
Petition challenging the act of the House of Representatives, could
the “Hello Garci” tapes be admissible in evidence before the
Senate sitting as an impeachment court

c) Republic Act 4200 entitled " An Act to Prohibit and Penalized Wire
Tapping and Other Related Violations of Private Communication and
Other Purposes," Section 1 of the Act provides that “it shall be unlawful
for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using
any other device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or
walkie-talkie or tape recorder, or however otherwise described”
 Section 4 of the Act provides for the inadmissibility
of any evidence gathered in violation of the law:
“any communication or spoken word, or the
existence, contents, substance, purport, effect, or
meaning of the same or any part thereof, or any
information therein contained obtained or secured
by any person in violation of the preceding sections
of this Act shall not be admissible in evidence in
any judicial, quasi-judicial, legislative or
administrative hearing or investigation
 In Ramirez vs. Court of Appeals, [G.R. No. 93833 (Sept. 28,
1995)]: Section 1 of R.A. 4200 "clearly and unequivocally
makes it illegal for any person, not authorized by all the
parties to any private communication to secretly record such
communication by means of a tape recorder. The law makes
no distinction as to whether the party sought to be penalized
by the statute ought to be a party other than or different from
those involved in the private communication. The statute's
intent to penalize all persons unauthorized to make such
recording is underscored by the use of the qualifier "any".
Consequently, ..... even a (person) privy to a communication
who records his private conversation with another without
the knowledge of the latter (will) qualify as a "violator" under
this provision of R.A. 4200."
Gaanan vs. Intermediate Appellate Court, [145 SCRA 112
(1986)]: the use of a telephone extension for the purpose
of overhearing a private conversation without
authorization did not violate R.A. 4200 because a
telephone extension devise was neither among those
"device(s) or arrangement(s)" enumerated therein,
following the principle that "penal statutes must be
construed strictly”
 The “hello Garci” tape is allegedly a taped conversation of
conversations through cellular phones. The wording of the
prohibition is relative to tapping “any wire or cable”, and
cellular technology does away with both wires and cables.
 In Navarro v. Court of Appeals, GR 121087 (Aug. 26, 1999),
the Court differentiated between public and private
conversations. Thus, it said that a heated exchange between
two persons in the presence of a third who recorded secretly
the exchange was not private in nature, and therefore even if
secretly recorded, was admissible in evidence
  According to Justice Puno in Roque vs. De Venecia: “I
therefore respectfully submit that there is now a commixture
of political and judicial components in our reengineered
concept of impeachment. It is for this reason and more that
impeachment proceedings are classified as sui generis.”
 New York times versus United States. There, New
York Times won the right to publish stolen Pentagon
Papers on the ground that they involve public
concerns. Anent the right to privacy, the court ruled
that it must yield to public interest:
 This is the third constitutional issue:
the legality of this policy of “CPR”.
“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.”
CPR
 In a policy speech delivered before the business community,
the President declared: “ I am tired of running after the school
bullies in the schoolyard. The time for maximum tolerance is
over. The state has a right to defend itself”.
 Simply put, the so-called “calibrated preemptive response
(CPR)” means that rallies without permits will no longer be
allowed. Subsequently, mayors identified with President
Arroyo, such as the Mayors of Manila and Quezon City, have
refused to issue any rally permits.
 Here, Philippine Jurisprudence has been consistent in upholding the
primacy and importance of both the rights to speech and peaceful
assembly. Adopting the ruling in the US of De Jonge v. Oregon,
299 U.S. 353. 364 (1937) where the US Supreme Court has
said that he right of peaceable assembly is a right cognate
to those of free speech and free press and is equally
fundamental, the Philippine Supreme Court has
consistently upheld the primacy of both the freedom of
speech and the freedom to peaceful assembly. Thus,
Primicias v. Fugoso, 80 Phil 71: The applicant has the right
to a permit which shall be granted by the Mayor, subject only
to the latter's reasonable discretion to determine or specify
the streets… we must adopt (this) construction, that is
construe the provisions of the said ordinance to mean that it
does not confer upon the Mayor the power to refuse to grant
the permit, but only the discretion, in issuing the permit, to
determine or specify the streets
 Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc., 51 SCRA 189
(1973): (SC ruling on the primacy of the right of assembly
and petition over the property rights of the company’s
management) …the primacy of human rights – freedom of
expression, of peaceful assembly and of petition for
redress of grievances – over property rights has been
sustained.
  De la Cruz v. CA, G.R. Nos. 126183 & 129221 (March
25, 1999): The right to assemble is not subject to prior
restraint. It may not be conditioned upon the prior issuance
of a permit or authorization from government authorities.
However, the right must be exercised in such a way as will
not prejudice the public welfare.
 Reyes v. Bagatsing, G.R. No. L-65366: 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 (in giving the permit) or modification that the
clear and present danger test be the standard for the
decision reached.
 De la Cruz v. CA, G.R. Nos. 126183 &
129221 (March 25, 1999): The right to
assemble is not subject to prior restraint. It
may not be conditioned upon the prior
issuance of a permit or authorization from
government authorities. However, the right
must be exercised in such a way as will
not prejudice the public welfare.
 On the basis of the foregoing precedents, it is clear that
Arroyo’s CPR is void for being patently unconstitutional as
constituting prior restraint on the freedom of expression and
freedom to peaceful assembly.

Held by the Supreme Court:

At any rate, the Court rules that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it means
the same thing as maximum tolerance and is illegal if it means
something else
Held by the Supreme Court:

For this reason, the so-called calibrated preemptive response

policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses
our people and is used by some police agents to justify abuses.
On the other hand, 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.
E.O. 464

On September 28, 2005, in an apparent bid to stop both Gen.

Guidani and the UP Law Center from attending scheduled
Senate hearings on electoral fraud and Northrail, the President
issued EO 464 prohibiting all members of the executive from
appearing before any Congressional investigation without the
personal consent of the President.

 As alleged legal basis, the EO invoked the separation of powers,

executive privilege, as well as the fact that the Congress is
allegedly engaging in investigations in “aid of destabilization”.
 The Constitutional Power of Congress to conduct
hearings “in aid of legislation” is found in Article VI of
the 1987 Constitution:

 “SEC.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.
 SEC.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.”
 In the early case of Arnault vs. Nazareno, The Supreme Court held
that legislative power of Congress is plenary in nature and any
person who refuses to appear before any Congressional
Investigation may be cited in contempt of Congress.

 In the recent case of Bengzon vs. Senate Blue Ribbon Committee,

the Court reiterated the ruling in Arnault but limited the scope of
Congressional Investigations to those which are “in aid of
legislation”, although seemingly, the construction of what is in “aid
of legislation” still appears to be left to the discretion of Congress.
It ruled though that to investigate an issue already being heard by
the Courts is a grave abuse of discretion.
 It appears already from a textual reading of the Constitution
that there is no basis for the issuance of EO 464. To begin
with, while the EO itself cites Article VI, Sec. 22 as
constitutional basis, there is nothing in the provision that
would authorize the President to insist on prior consent. All
that she could ask from Congress is to conduct the hearing
in executive session when the “security of the State or the
public interest requires.

 What about Executive Privilege? As early as US vs. Burr

(1807), as reiterated in In Re: Grand Jury Subpoena versus
Nixon the US SC has ruled that it is ultimately the court and
not the executive that will determine when the privilege
must apply.
 EO 464 also cites two Philippine cases, to wit: Chavez
vs. Presidential Commission on Good Government and
Almonte vs. Vasquez.

 In Chavez, the Court recognized the principle of

executive privilege when it ruled that "[h]uman
experience teaches that those who expect public
dissemination of their remarks may well temper candor
with a concern for appearances and for their own
interests to the detriment of the decision making
process.". In the same case though, the court did not
give credence to the invoked privilege and ruled that the
right of the people to information on matters concerning
public concerns should prevail
 In the cited case of Almonte vs. Vasquez, the
Court in fact again rejected the invocation of
privilege as a ruse and told Almonte to divulge
the required information.

 On the basis of a textual reading of the

Constitution, and on the basis of precedent, EO
464 appears again to be unconstitutional and
illegal.
Held by the Supreme Court in Bayan Muna vs Executive Secretary
Eduardo Ermita:

 The requirement then to secure presidential consent under

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

 Section 1 cannot, however, be applied to appearances of

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

The claim of privilege under Section 3 of E.O. 464 in

relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that
the President has not given her consent. It is woefully
insufficient for Congress to determine whether the
withholding of information is justified under the
circumstances of each case. It severely frustrates the
power of inquiry of Congress.
PP 1017
Declaration of State of National Emergency

1. Professor Randolph David arrested without a

Warrant
2. Daily Tribune newspaper raided & its
operations taken over by the AFP
3. Rallies by KMU & NAFLU-KMU dispersed
Justification for PP 1017:
Conspiracy between the left and the right to bring
down the government of Gloria Macapagal
Arroyo
Held by the Court:

 WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not
related to lawless violence, as well as decrees promulgated by the President,
are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President
to take over privately-owned public utility or business affected with public
interest without prior legislation.

 G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the

AFP and the PNP should implement PP 1017, i.e. whatever is “necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence.” Considering that “acts of terrorism” have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL.
Solution: Charter Change?

Modes to Propose Changes to the Constitution

1. Constitutional Convention
2. Constitutional Assembly
3. People’s Initiative
Sigaw ng Bayan vs Comelec
The Lambino Group miserably failed to comply with the
basic requirements of the Constitution for conducting a
people’s initiative. Thus, there is even no need to revisit
Santiago, as the present petition warrants dismissal
based alone on the Lambino Group’s glaring failure to
comply with the basic requirements of the Constitution.
For following the Court’s ruling in Santiago, no grave
abuse of discretion is attributable to the Commision on
Elections.
Sigaw ng Bayan vs Comelec
The essence of amendments “directly proposed by the
people through initiative upon a petition” is that the
entire proposal on its face is a petition by the people.
This means two essential elements must be present.
First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their
behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition.
Sigaw ng Bayan vs Comelec
The full text of the proposed amendments may be either
written on the face of the petition, or attached to it. If so
attached, the petition must state the fact of such
attachment. This is an assurance that every one of the
several millions of signatories to the petition had seen
the full text of the proposed amendments before
signing. Otherwise, it is physically impossible, given the
time constraint, to prove that every one of the millions of
signatories had seen the full text of the proposed
amendments before signing
Constitutional Assembly
Article XVII: Amendments and Revisions
Section 1. Any amendment to, or revision of, this
Constitution may be proposed by the
Congress, upon a vote of three-fourths of all its
Members; or a constitutional convention
 WHAT NEXT AFTER ARROYO?

 Article
VII, SEC.8. provides the grounds for
succession into the Office of the President:

 death, permanent disability, removal from office,

or resignation of the President
 ArticleII, Section 1 of the 1987 Constitution
provides:
“The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them.”
 The Supreme Court ruled that the legitimacy of a
revolutionary government is beyond the ambit of
judicial review as it involves a political question, one
that the people themselves have decided upon
(League of Lawyers vs. Aquino).
May we all live long and prosper!!!