Protestant prayed that revision of ballots in remaining precincts of pilot areas be dispensed with. Protestee vs. Fidel VALDEZ RAMOS argued that the protestant's election as a Senator did not render the case moot. The Protestant answers this issue in the negative.
Protestant prayed that revision of ballots in remaining precincts of pilot areas be dispensed with. Protestee vs. Fidel VALDEZ RAMOS argued that the protestant's election as a Senator did not render the case moot. The Protestant answers this issue in the negative.
Protestant prayed that revision of ballots in remaining precincts of pilot areas be dispensed with. Protestee vs. Fidel VALDEZ RAMOS argued that the protestant's election as a Senator did not render the case moot. The Protestant answers this issue in the negative.
Manila EN BANC P.E.T. Case No. 001 February 13, 1996 MIRIAM DEFENSOR-SANTIAGO, protestant, vs. FIDEL VALDEZ RAMOS, protestee. R E S O L U T I O N In her motion of 16 August 1995, reiterated in her Comment of 29 August 1995, Protestant Miriam Defensor-Santiago prayed that the revision of ballots in the remaining precincts of the pilot areas be dispensed with and the revision process in the pilot areas be deemed completed. We deferred action on that motion and required the Protestant and the Protestee to submit their respective memoranda on the issue of whether this case had been rendered moot by the election of the Protestant as a Senator in the May 1995 election and her assumption of office as such on 30 June 1995. The Protestant answers this issue in the negative. Relying on Sibulo vda. de De Mesa vs. Mencias, 1 Lomugdang vs. Javier, 2 and De Castro vs. Ginete, 3 she asserts that an election contest involves not only an adjudication and settlement of the private interests of the rival candidates, but more importantly, the paramount need to dispel, once and for all, the uncertainty that beclouds the true choice of the electorate. Hence, it is imbued with public interest and should be pursued to its final conclusion to determine the bona fide winner. She further asserts that an election case may be rendered moot only if the term of the contested office has expired, 4 thus her election as Senator and assumption of office as such cannot, under the rule laid down in Moraleja vs. Relova, 5 be construed as an abandonment of the instant protest. Finally, she alleges that this Court has departed from the orthodox view that a case should be dismissed if it has been mooted. 6
For his part, the Protestee submits that there is strong legal basis for this Tribunal to rule that the Protestant is deemed to have abandoned the instant protest, in light of the ruling in Dimaporo vs. Mitra 7 which construed Section 67, Article IX of B.P. Blg. 881 (Omnibus Election Code). 8 He submits, however, that public interest requires that this protest be resolved on the merits considering that: (a) it involves a matter of paramount and grave public interest; and (b) it was filed merely to keep Protestant Santiago in the limelight in preparation for her Senatorial campaign. He likewise claims that a resolution on the merits would confirm his victory in the 11 May 1992 presidential election and prove that the instant protest is unfounded. Further more, it would establish guiding and controlling principles or doctrines with respect to presidential election protest cases, thereby educating the bench and the bar and preventing the indiscriminate filing of baseless protest cases. We cannot subscribe to the view of the Protestee that by filing her certificate of candidacy for Senator Protestant Santiago ipso facto forfeited her claim to the office of President pursuant to Section 67 of B.P. Blg. 881. Plainly, the said section applies exclusively to an incumbent elective official who files a certificate of candidacy for any office "other than the one he is holding in a permanent capacity." Even more plain is that the Protestant was not the incumbent President at the time she filed her certificate of candidacy for Senator nor at any time before that. Thus, the holding in Dimaporo does not apply to the Protestant. Neither do we find any convincing logic to the Protestee's proposition that this case should nevertheless be resolved on the merits because its filing was done in bad faith, i.e., merely to keep the Protestant in the limelight in preparation for her Senatorial campaign. If that were so, then public interest would be served if this case were put to an abrupt end after the Protestant won a seat in the Senate. Finally, neither do we find any cogent nor compelling reason to proceed with this case, in the event that we find it to be moot, simply to establish guiding and controlling principles or doctrines with respect to election protests involving the office of the President or the Vice-President. I. The key then to the resolution of the aforestated issue is the consideration of public interest and public policy and their encompassing effects on election cases which have been unequivocally expressed in the cases cited by the Protestant. In Sibulo vda. de De Mesa vs. Mencias, 9 this Court stated: It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him or the character of an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206). Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the election protest filed against him, and it may be stated as a rule that an election contest survives and must be prosecuted to final judgment despite the death of the protestee. (In Silverio vs. Castro, 19 SCRA 520 [1967], where the trial court proceeded with the trial of an election protest and decided it even if the protestee had already died and his Vice-Mayor had assumed office by succession, this Court, instead of dismissing the appeal brought on behalf of the deceased protestee, required the Vice-Mayor to intervene on the side of the appellant) In Lomugdang vs. Javier, 10 this Court declared: Determination of what candidate has been in fact elected is a matter clothed with public interest, wherefore, public policy demands that an election contest, duly commenced, be not abated by the death of the contestant. We have squarely so ruled in Sibulo vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 26, 1966, in the same spirit that led this Court to hold that the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office is not a ground for the dismissal of the contest nor detract the Court's jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584). In the same Sibulo case, already cited, this Court likewise ruled that by virtue of Section 7, Republic Act 2264, the vice-mayor elect has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the vice mayor succeeds to the office of mayor that becomes vacant if the duly elected cannot assume the post. In Moraleja vs. Relova, 11 this Court ruled: As to the contention that by accepting such appointment as Technical Assistant, protestant has abandoned his protest, all that need be said is that once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be known without regard to the wishes or acts of the parties, so much so that there can be no default, compromise nor stipulation of facts in this kind of cases. (Francisco, How To Try Election Cases, p. 163, citing Civilio v. Tomacruz, 62 Phil. 689). In the same manner that the acceptance by the protestee of an appointment to another position is not a ground for dismissal of the protest (Philippine Law on Elections by Martin, 1970 ed., pp. 258-259, citing Calvo v. Maramba, G.R. No. L-13206, January 7, 1918) like the resignation of the protestee from the contested office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is of public interest that the real winner be known, neither can the acceptance of a more or less temporary employment, such as that of a technical assistant of the Vice-Governor, which is a primarily confidential position, be considered as inconsistent with protestant's determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate. In such instances, the plight of protestant may be viewed in the same light as that of an employee who has been illegally dismissed and who, to find means to support himself and family while he prosecutes his case for reinstatement, accepts a temporary employment elsewhere. Such employee is not deemed to have abandoned the position he seeks to recover. (Tan v. Gimenez, et al. G.R. No. L-12525, February 19, 1960, 107 Phil. 17; Potot v. Bagano, G.R. No. L-2456, January 25, 1949, 82 Phil. 679). Of course, the case of protestant who accepts a permanent appointment to a regular office could be different, but We are not ruling on it here. In De Castro vs. Ginete, 12 this Court stated: The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. What is sought in an election protest is the correction of the canvass of the votes, which is the basis of the proclamation of the winning candidate. An election contest involves a public office in which the public has an interest. Certainly, the act of a losing candidate of recognizing the one who is proclaimed the winner should not bar the losing candidate from questioning the validity of the election of the winner in the manner provided by law. The factual milieu in these cases is not on all fours with the instant protest. In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro, 13 the protestee had been proclaimed the winning mayoralty candidate and had assumed office, and then died during the pendency of the election protest. While in Lomugdang, it was the protestant who died during the pendency of the protest. In Moraleja, the election protest survived the protestant's acceptance of temporary employment during the pendency of his election protest. Likewise, in De los Angeles vs. Rodriguez, 14 cited in Sibulo vda. de De Mesa, an election protest was continued despite the resignation from office of the protestee. Finally, in De Castro, the only issue presented was whether the protest should be dismissed on the ground of estoppel. In this proceeding, the protestant congratulated the protestee after the latter was proclaimed the winner by the board of canvassers and even exhorted those present during the inauguration and installation into office of the protestee to support the latter's administration. May the above dicta apply to the case of Protestant Santiago who assumed the office of Senator after her election as such in the 8 May 1995 election? This question was impliedly raised but not resolved in Moraleja. For after holding that the acceptance by the protestant therein of a temporary appointment during the pendency of his protest did not amount to an abandonment thereof, nor could it be considered inconsistent with his determination to protect and pursue the public interest involved in the election protest, this Court noted: "Of course, the case of a protestant who accepts a permanent appointment to a regular office could be different, but We are not ruling on it here." 15
Indeed, it would be entirely different where the protestant pursued the new position through a popular election, as in the case of Protestant Santiago who filed a certificate of candidacy for Senator in the 8 May 1995 election, campaigned for such office, and submitted herself to be voted upon. She knew that the term of office of the Senators who would then be elected would be six years, to commence at noon on the thirtieth day of June next following their election 16 and to end at noon of 30 June 2001. Knowing her high sense of integrity and candor, it is most unlikely that during her campaign, she promised to serve the electorate as Senator, subject to the outcome of this protest. In short, she filed her certificate of candidacy for the Senate without any qualification, condition, or reservation. In so doing, she entered into a political contract with the electorate that if elected, she would assume the office of Senator, discharge its functions and serve her constituency as such for the term for which she was elected. These are givens which are in full accord with the principle enshrined in the Constitution that, public office is a public trust, and public officers and employees must at all times be accountable to the people and serve them with utmost responsibility, integrity, loyalty and efficiency. 17
Indeed, it has been aptly said: It is impossible that government shall be carried on, and the functions of civil society exercised, without the aid and intervention of public servants or officers, and every person, therefore, who enters into civil society and avails himself of the benefits and protection of the government, must owe to this society, or, in other words, to the public, at least a social duty to bear his share of the public burdens, by accepting and performing, under reasonable circumstances, the duties of those public offices to which he may be lawfully chosen. 18
In this jurisdiction, an elected public official may even be held criminally liable should he refuse to discharge an elective office. 19
The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of which coincides with the last three years of the term of the President elected in the 11 May 1992 synchronized elections. The latter would be Protestant Santiago's term if she would succeed in proving in the instant protest. that she was the true winner in the 1992 elections. In assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the language of Moraleja, abandoned her "determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate." Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all too crucial political stability of the nation during this period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public interest implications thereof, on the following grounds: (1) The petition is insufficient in form and substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible. 20
Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, 21 may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. 22 In sum, if an election protest may be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. II. There is yet another reason why this case should now be dismissed. This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive the revision of the remaining unrevised ballots from 4,017 precincts out of the 17,527 precincts of the designated three pilot areas. This is an unabashed reversal from her original stand in her Motion and Manifestation dated 18 October 1993. Taking this into account, this Tribunal declared in its resolution of 21 October 1993: After deliberating on the foregoing pleadings and the arguments of the parties, the Tribunal rules for the Protestant insofar as the revision of the remaining ballot boxes from her pilot areas are concerned, and against the immediate application of Rule 61 of the Rules of the Tribunal to the Protestee in respect of the Counter-Protest. At this stage of the proceedings in this case it cannot be reasonably determined whether the revised ballots are "considerable" enough to establish a trend either in favor of or against the Protestant as would justify an appropriate action contemplated in Rule 61 of the Rules of the Tribunal, or whether the unrevised ballots from said areas would not, in the language of the Protestant, "materially affect the result of the representative sample of the ballot boxes so far revised." As to the 1,300 ballot boxes from Makati, the proper time to raise the objections to the ballot boxes and its contents would be during the revision stage. Consequently, we resolved therein to: A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the aforequoted paragraph A of the 5 October 1993 Resolution and for that purpose to DIRECT the Acting Clerk of Court of the Tribunal to collect said ballot boxes and other election documents and paraphernalia from their respective custodians in the event that their revisions in connection with other election protests in which they are involved have been terminated, and if such revisions are not yet completed, to coordinate with the appropriate tribunal or court in which such other election protests are pending and which have already obtained custody of the ballot boxes and started revision with the end in view of either seeking expeditious revisions in such other election protests or obtaining the custody of the ballot boxes and related election documents and paraphernalia for their immediate delivery to the Tribunal; and B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt hereof, if after the completion of the revision of the ballots from her pilot areas she would present evidence in connection therewith. Until the present, however, the Protestant has not informed the Tribunal whether after the completion of the revision of the ballots from her pilot areas, she still intends to present evidence in connection therewith. This failure then, is nothing short of a manifest indication that she no longer intends to do so. It is entirely irrelevant at this stage of the proceedings that the Protestant's revisors discovered in the course of the revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the pilot areas and have objected to thousands of ballots cast in favor of the Protestee. Revision is merely the first stage, and not the alpha and omega, of an election contest. In no uncertain terms then, this Tribunal declared in its resolution of 18 March 1993 that: Protestant knows only too well, being a lawyer and a former judge herself, that the revision phase of her protest is but the first stage in the resolution of her electoral protest and that the function of the revisors is very limited. In her 12 February 1993 Comment on Protestee's 5 February 1993 Urgent Motion for the issuance of a resolution which, inter alia, would clarify that revisors may observe the objections and/or claims made by the revisors of the other party as well as the ballots subject thereof, and record such observations in a form to be provided for that purpose, Protestant unequivocally stated: 8. Further, the principle and plan of the RPET [Rules of the Presidential Electoral Tribunal] is to subdivide the entire election contest into various stages. Thus, the first stage is the Revision Proper. Second is the technical examination if so desired by either party. Third is the reception of evidence. And Fourth, is the filing of parties' memoranda. and described the function of the revisors as "solely to examine and segregate the ballots according to which ballots they would like to contest or object (contested ballots) and those which they admit or have no objections (uncontested ballots)." Indeed, revisors do not have any judicial discretion; their duties are merely clerical in nature (Hontiveros vs. Altavas, 24 Phil. 632 [1913]). In fact, their opinion or decision on the more crucial or critical matter of what ballots are to be contested or not does not even bind the Tribunal (Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168 [1929]). Thus, no undue importance may be given to the revision phase of an election contest. It can never serve as a logical or an acceptable basis for the conclusion that massive fraud or irregularities were committed during an election or that a Protestant had won in said election. If that were so, a Protestant may contest all ballot boxes and, in the course of the revision thereof, object for any imagined ground whatsoever, even if the same be totally unfounded and ridiculous to all ballots credited to the Protestee; and then, at the end of the day, said Protestant may even announce to the whole world that contrary to what is reflected in the election returns, Protestee had actually lost the elections. All told, a dismissal of this election protest is inevitable. III. However, three Members of the Tribunal outrightly disagree with the foregoing disquisitions. Hence, a reply to the important points they raise is in order. Mr. Justice Puno's perception that the majority would dismiss this "election protest as moot and academic on two (2) grounds: first, that the findings of irregularities made by the revisors of the protestant in the course of the revision of ballots in 13,510 contested precincts are entirely irrelevant; and second, she abandoned her protest when she filed her certificate of candidacy in the 8 May 1995 senatorial elections," is inaccurate. The dispositive portion of this resolution leaves no room for any doubt or miscomprehension that the dismissal is based on the ground that the protest "has been rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office as Senator and her discharge of the duties and functions thereof." There is, therefore, ONLY ONE reason or ground why the protest has been rendered moot and academic, i.e., it has been abandoned or withdrawn. This was the very issue upon which the parties were required, in the resolution of 26 September 1995, to submit their respective memoranda. The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno has apparently understood, that this protest has become moot and academic because the finding of irregularities by the Protestant's revisors in the course of the revision of the ballots in 13,510 contested precincts in the pilot areas are "entirely irrelevant," and that the Protestant has abandoned this protest by filing a certificate of candidacy for the office of Senator in the 8 May 1995 elections. The majority's views on "irrelevancy" and "on the filing of the certificate of candidacy" are not the grounds themselves, but parts only of the arguments to strengthen the conclusion reached, i.e., abandonment. Otherwise stated, in order to make the point crystal clear, the majority never held that the irrelevancy of the finding of irregularities is a ground why this protest has become moot and academic. It only declared that the Protestant's: (a) waiver of revision of the unrevised ballots from the remaining 4,017 contested precincts in the pilot areas; and (b) failure to comply with the resolution of 21 October 1995 requiring her to inform the Tribunal within ten days from notice if she would still present evidence after completion of the revision of the ballots from her pilot areas rendered such "findings" of irregularities entirely irrelevant considering the Tribunal's disquisitions on what revision is in its 18 March 1993 resolution. In his dissent, Mr. Justice Puno lifted the words "entirely irrelevant"; from the fourth paragraph under the heading "II" of this Resolution. It must, however, be stressed that the said paragraph is inexorably linked to the preceding two paragraphs relating to the above-mentioned waiver and non-compliance, which provide the major premises for the fourth paragraph; more concretely, the latter is nothing more than the logical conclusion which the major premises support. The reasons adduced by Mr. Justice Puno for the Protestant's turn-around are mere speculations. In any event, the protestant's possible "belief . . . that the contested ballots in 13,500 precincts when properly appreciated will sufficiently establish her electoral victory," cannot stand against her previous insistence to proceed with the revision of the remaining unrevised ballots and the aforementioned finding of the Tribunal in its resolution of 21 October 1993. The Tribunal is not to blame for "the slow pace of the protest," if at all she so believes in such a state of things. Neither can the thought of cutting costs be a valid reason. The Protestant knew from the outset that the revision of the ballots in the pilot areas was a crucial phase of this protest because, under Rule 61 of the Rules of the Tribunal, the protest could forthwith be dismissed if the Tribunal were convinced that she would probably fail to make out a case but only after examination of the ballots from the pilot areas and the evaluation of the evidence offered in connection therewith. It goes without saying that every ballot then in the pilot areas counts. Then too, it was never the view of the majority that the Protestant's filing of the certificate of candidacy for a seat in the Senate in the 8 May 1995 election was the sole and exclusive operative act for what Mr. Justice Puno perceives to be the majority's second ground why this protest has become moot and academic. To the majority, such filing was only the initial step in a series of acts performed by the Protestant to convincingly evince her abandonment of this protest, viz., campaigning for the office of Senator, assumption of such office after her election and her discharge of the duties and functions of the said office. Precisely, in the resolution of 26 September 1995, this Court directed the Protestant and the Protestee to submit their respective memoranda on the issue [o]f whether or not the protest has not been rendered moot and academic by the election of the Protestant as Senator and her subsequent assumption of office as such on 30 June 1995. (emphasis supplied) As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite Black's Law Dictionary and the cases of Roebuck vs. Mecosta Country Road Commission, 23 Dober vs. Ukase Inv. Co., 24 and McCall vs. Cull, 25 cited therein. We have turned to the primary sources of these cases, meticulously perused them, and found none materially significant to this protest. The first two cases above refer to abandonment of property. Roebuck involved the issue of whether a roadway had been abandoned by the Mecosta Road Commission. The Court therein held that in order for there to be an abandonment of land dedicated to public use, two elements must concur, viz., (a) intention to relinquish the right or property, but without intending to transfer title to any particular person; and (b) the external act which such intention is carried into effect. While Dober, on the issue of whether the plaintiff therein abandoned a certain property, quoted Corpus Juris that the intention to abandon must be determined from the facts and circumstances of the case. There must be a clear, unequivocal and decisive act of the party to constitute abandonment in respect of a right secured an act done which shows a determination in the individual not to have a benefit which is designed for him. It is, of course, settled that a public office is not deemed property. 26
Only McCall involved the issue of abandonment of office. It is stated therein as follows: Abandonment is a matter of intention and, when thought of in connection with an office, implies that the occupant has quit the office and ceased to perform its duties. As long as he continues to discharge the duties of the office, even though his source of title is two appointments, one valid and the other invalid, it cannot be said he has abandoned it. It was said in Steingruber v. City of San Antonio, Tex. Com. App., 220 S.W. 77, 78: "A public office may be abandoned. Abandonment is a species of resignation. Resignation and abandonment are voluntary acts. The former is a formal relinquishment; the latter a relinquishment through non-user. Abandonment implies non-user, but non-user does not, of itself, constitute abandonment. The failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Abandonment may result from an acquiescence by the officer in his wrongful removal or discharge, but, as in other cases of abandonment, the question of intention is involved. Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the dissent of Mr. Justice Kapunan, the Protestant could not abandon the office of President which she was not holding at the time she filed the certificate of candidacy for Senator. But the majority of the Tribunal never declared, nor even implied, that she abandoned the office of President because it knew that she had yet nothing to abandon. Precisely, she filed this protest to be declared the winner for that office, to thereafter assume and perform the duties thereof, and exercise the powers appertaining thereto. What the Tribunal explicitly states is that the Protestant abandoned this Protest, thereby rendering this protest moot. Mr. Justice Puno also insists that abandonment raises a question of fact and that the Tribunal cannot resolve it "for lack of competent evidence"; moreover, he notes that the Protestee "has not adduced evidence which can be the basis for a finding that she intentionally abandoned her protest; on the contrary, the Protestee does not want the protest to be dismissed on a technicality but prays that it be decided on the merits." Suffice it to say that the Protestant herself has not denied nor questioned the following facts, which by themselves, constitute overwhelming proof of the intention to abandon the protest: (a) Filing of a certificate of candidacy for Senator for the 8 May 1995 elections; (b) Campaigning for the office of Senator in such election; (c) Taking her oath of office as Senator upon the commencement of the term therefor; (d) Assumption of office as Senator; and (e) Discharge and performance of the duties appertaining to the office of Senator. These acts speak for themselves res ipsa loquitur to negate any proposition that the Protestant has not abandoned this protest. Thus, what initially appears to be the correct view in the dissent is, in the final analysis, misplaced. This must also be the verdict upon the following pronouncements of Mr. Justice Puno: A more fundamental reason prevents me from joining the majority. With due respect, I submit that the majority ruling on abandonment is inconsistent with the doctrine that an election contest is concerned less with the private interest of the candidates but more with public interest. Under a republican regime of government, the overarching object of an election contest is to seek and enforce the judgment of the people on who should govern them. It is not a happenstance that the first declaration of policy of our Constitution underlines in bright that "sovereignty resides in the people and all government authority emanates from them." The first duty of a citizen as a particle of sovereignty in a democracy is to exercise his sovereignty just as the first duty of any reigning government is to uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that ". . . once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be known without regard to the wishes or acts of the parties so much so that there can be no default, compromise nor stipulation of facts in this kind of cases." Wisely, this Tribunal has consistently demurred from dismissing election contests even on the ground of death of the protestee or the protestant. The majority appears to stray away from this lodestar of our Constitution. It will dismiss the case at bar even while the protestee and the protestant are yet alive, even while the term of the 1992 president-elect has yet to expire, and even while the protestee and the protestant together plead, that the Tribunal should determine the true will of the people by deciding their dispute on the merit[s] and not on technicalities that trifle with the truth. I submit that it is the better stance for the Tribunal to decide this election contest on the merit[s] and vindicate the political judgment of the people which far surpasses in significance all other considerations. Our duty to tell the people who have the right to govern them cannot depend on the uncertain oscillations of politics of the litigants as often times they are directed by the wind of convenience, and not by the weal of the public. For one, the majority has, in no uncertain terms, demonstrated the dissimilarities in the factual settings of the instant protest vis-a-vis the earlier cases that enunciated the doctrine relied on by Mr. Justice Puno. Then, too, it must be reiterated, to avoid further miscomprehension, that the Moraleja ruling even conceded that the matter of abandonment "could be different" if the petitioner therein had accepted "a permanent appointment to a regular office" during the pendency of his protest. In short, Moraleja in fact intimates abandonment of an election protest if, in the meantime, the Protestant accepts a permanent appointment to a regular office. If that be so, then would it be, and for weightier reasons, against a protestant who voluntarily sought election to an office whose term would extend beyond the expiry date of the term of the contested office, and after winning the said election, took her oath and assumed office and thereafter continuously serves it. In Moraleja, the Supreme Court was meticulous in excluding abandonment from the enumeration of specific "acts or wishes" of the parties which must be disregarded because of the public interest component of an election protest. As reflected in the above quotation from Mr. Justice Puno's dissent, only default, compromise, or stipulation of facts are included. Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets that, as distinctly pointed out in the early part of this Resolution, the Rules of the Tribunal allow summary dismissal of election protests even for less important grounds, to repeat, such as the petition filed with the Tribunal or the annexes attached thereto are not clearly legible, or the filing fees and cash deposits were not filed within the periods fixed in the Rules, 27 and the additional provision for dismissal under Rule 61. All these provisions of the Rules would then be put to naught or, at the very least, modified or amended in a way not authorized by the Rules, if the theory of Mr. Justice Puno be accepted. Such theory would unreasonably bind the Tribunal to the technical minutiae of trial on the merits to bring to their ultimate end all protests or contests filed before it including those filed by candidates who even forgot to vote for themselves and obtained no votes in the final count, but, unable to accept defeat, filed a protest claiming massive fraud and irregularities, vote-buying, and terrorism. Consequently, all the time and energy of the Justices of the Supreme Court would be spent appreciating millions of revised ballots to the prejudice of their regular judicial functions in the Court, as the electoral protest of every Juan, Pedro, and Jose who lost in the presidential elections would have to be heard on the merits. Public policy abhors such a scenario and no public good stands to be thereby served. WHEREFORE, the Tribunal hereby resolved to (1) GRANT the Protestant's Motion of 16 August 1995 to dispense with the revision of ballots and other election documents in the remaining precincts of the pilot areas; (2) DISMISS the instant election protest, since it has been rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office as Senator and her discharge of the duties and functions thereof; and (3) DISMISS, as a consequence, the Protestee's Counter-Protest. No pronouncements as to costs. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero and Hermosisima, Jr., JJ., concur. Melo, J., concurs in the result. Panganiban, J., took no part. Separate Opinions PADILLA, J., concurring and dissenting: I concur in the Tribunal's Resolution dismissing the present protest and, as a consequence, the counter-protest. My concurrence is anchored not on the merits of the protest and counter-protest since they have not reached the period of appreciation or evaluation of the ballots nor on the failure of protestant to comply with procedural requirements, but simply upon the protestant's assumption and discharge of office as a Senator of the Republic after the 8 May 1995 elections. Protestant's candidacy for Senator in the 8 May 1995 elections, her election to said office and her actual assumption and discharge of the office, combined to constitute, in my view, a supervening fact that rendered moot and academic her present protest because, if she were to pursue her present protest (without such supervening fact) and, if she were to win the protest, her term of office as President of the Philippines would in any case expire on 30 June 1998. When she, however, chose to run for Senator in the 8 May 1995 elections, which was after her filing of the present protest, she knew that, if elected, her term of office as Senator would expire only on 30 June 2001. Therefore, as a successful protestant in this case, she could be President only up to 30 June 1998. What happens then to the last three (3) years of her term as Senator, i.e., 30 June 1998 to 30 June 2001? There would be a void, a hiatus or vacuum because after serving as President up to 30 June 1998, she can no longer assume the office of Senator from 30 June 1998 to 30 June 2001. There would likewise be a void, a hiatus or vacuum in her term of office as Senator from the time she assumes the presidency to 30 June 1998 (assuming she were to win the present protest). Thus, by continuing this protest, there could result an ensuing vacuum in the office of Senator, to which position protestant has been duly elected subsequent to the filing of her present protest. And yet, natura vacuum abhorret. (Nature abhors a vacuum). Public policy-wise, it is also not fair to the people to elect a Senator for six (6) years and yet, he or she will serve for less than that period. In other words; by voluntarily opting to become a Senator of the land with a term of office expiring on 30 June 2001, protestant must be deemed to have abandoned this protest which, if successfully pursued, would at most bring her only up to 30 June 1998 in the office of the President, with the last three (3) years of her term as Senator going to waste, in terms of loss of people's representation in the Senate. I repeat that in this protest, protestant seeks to be declared as the truly elected President up to 30 June 1998. In the 8 May 1995 elections, however, she was elected Senator for a term ending on 30 June 2001. As Senator, she has become a member of the legislative department of government impressed with the duty, among others, to fiscalize the executive. She cannot, in my view, opt to fiscalize the executive until she herself becomes the executive, at which point, she will abandon the fiscalizing duty entrusted to her by the people. She must choose only one of the two (2) positions involved; she cannot have both within overlapping periods of time. And she, in fact, made the choice becoming and qualifying as a Senator of the Republic from 30 June 1995 to 30 June 2001. It appears clear that the people (electorate) expect her to perform dutifully, creditably and successfully in the position of her last and most recent choice. She should, in my considered view, be deemed to have abandoned or waived her claim to the Presidency of the Republic, at least until 30 June 1998, when she can run for the said office without relinquishing or forfeiting her seat as Senator (See Sec. 67, Art. IX, BP 881). Bellosillo, J., concurs. Dissenting Opinions PUNO, J., dissenting: The presidential election of May 11, 1992 was a watershed in our political history. The first presidential election after the EDSA revolution, it was a test to determine whether our people were ready to reexercise their sovereignty vitiated during the authoritarian years. It was also a test to ascertain the capability of government to hold clean, honest, and credible elections. It attracted the keen interest of many and no less than seven (7) candidates vied for the presidency. 1 After the smoke of election battle cleared, candidate Fidel V. Ramos was proclaimed winner. He garnered 5,342,571 votes while candidate M. Defensor-Santiago took the second place as she obtained 4,465,173 votes. 2 Soon, murmurs and whispers of fraud filled the air with all the candidates, including the winner, alleging that they were victims of election irregularities. The losers were urged to seek judicial relief but only M. Defensor-Santiago dared to file an election protest; a remedy derisively dismissed by some as a chase of a chimera. The others left their grievance to the tribunal of the people's conscience. Mrs. Santiago formally filed her election protest on July 20, 1992. Paragraph 3 of her Protest capsulizes her cause of action, viz.: xxx xxx xxx 3. In violation of the Constitution and specific statutory provisions, the protestee in conspiracy with top officials of the then reigning administration used government funds like the rebel returnee funds, the BALGU AND NALGU funds, among others, and government facilities like radio and television networks as well as transportation facilities to campaign for the protestee and buy out whole slates of candidates, voters, watchers and members of the board of election inspectors/tellers, election registrars and other Comelec officials, other strategic officials in government as well as other individuals to manipulate, tamper, change, replace, alter, switch ballots and election returns and other election documents including certificates of canvass and statement of votes by precinct and municipality, print ballots and stuff them in ballot boxes, the results of the election in favor of the protestee. On September 22, 1992, after the filing of the Answer of the protestee containing a counter protest, this Tribunal ordered the protestant to pinpoint the three (3) areas that "best exemplify the frauds and irregularities committed in the 1992 presidential election." The protestant specified the pilot areas as Metro Manila, Pampanga, and Zamboanga involving a total of seventeen thousand five hundred twenty-seven (17,527) precincts. Revision of ballots in these pilot areas proceeded though it suffered some delay primarily because the same ballots were also used as evidence in the election protest filed by Cielo Macapagal-Salgado against Bren Giuao involving the governorship of Pampanga and the election protest filed by Augusto Syjuco against Joker Arroyo involving the then lone congressional seat in Makati. On August 16, 1995, protestant filed a Motion alleging that the ballots and other election documents in thirteen thousand five hundred ten (13,510) precincts out of the seventeen thousand five hundred twenty-seven (17,527) precincts in the pilot areas had already been revised. She prayed ". . . that the revision of ballots and other election documents in the remaining precincts of the pilot areas be dispensed with and the revision process of the pilot areas be deemed completed." We deferred our ruling on the prayer of the protestant. It is of public notice that the protestant filed her certificate of candidacy in the election of May 8, 1995 for senator. She won and was proclaimed and now discharges the duties of the office. The majority would dismiss protestant's election protest as moot and academic on two (2) grounds: first, that the findings of irregularities made by the revisors of the protestant in the course of the revision of ballots in 13,510 contested precincts are entirely irrelevant; and second, she abandoned her protest when she filed her certificate of candidacy in the May 8, 1995 senatorial elections. With due respect, I dissent. The majority holds that "it is entirely irrelevant at this stage of the proceedings that the protestant's revisors discovered in the course of the revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the pilot areas." The majority noted the protestant's decision to waive the revision of the remaining unrevised ballots from 4,017 precincts. It also noted the failure of the protestant to inform the Tribunal whether she still intends to present additional evidence after the completion of the revision of the ballots from the pilot areas. I will not count against the protestant her decision to waive revision of the ballots from 4,017 precincts. Without engaging in speculation, it seems to me obvious that the protestant made the waiver because of her belief, rightly or wrongly, that the contested ballots in 13,500 precincts when properly appreciated will sufficiently establish her electoral victory. It is also apparent that the protestant is wary of the slow pace of the protest and she felt that the waiver will at least shorten the lengthening odds of time against her. Indubitably too, the waiver will enable her to cut the cost of her protest. Nor will I make any adverse inference from the alleged failure of the protestant to inform this Tribunal whether she would still be presenting evidence to support the allegations of fraud and irregularities made by her revisors. The records show that in a motion dated August 16, 1995, she prayed that the revision of ballots in the remaining precincts of the pilot areas be deemed completed. The Tribunal has not acted on this motion, hence, the process of revision of ballots is not formally finished. Since the Tribunal has not formally declared the termination of the process of revision, it is not timely for protestant to manifest whether or not she would adduce further evidence to prove her claim of fraud and irregularities. In any event, if the Tribunal entertains any doubt on the matter it should issue an Order requiring the protestant to make clear whether or not she intends to exercise her right to present further evidence. Valuable rights need not be lost on the basis of equivocal acts and omissions. Prescinding from these premises, I will not dismiss as entirely irrelevant the allegations of the revisors of the protestant that they discovered in the course of the revision irregularities in 13,510 precincts in the pilot areas. The protestant still has the opportunity to adduce further evidence to prove her case. She can still undertake to make a technical examination of the ballots through handwriting experts. She can still present the testimonies of witnesses like voters, watchers, inspectors and others who have knowledge of the alleged fraud and irregularities. She can still submit a memorandum of facts and law to clinch her case. It is only after the protestant has been afforded the opportunity to exercise these rights that the Tribunal can proceed to examine the contested ballots. Then and only then can the Tribunal rule whether or not the protestant failed to make a case. It can be assumed arguendo that the protestant has lost her right to present additional evidence by her failure to invoke it within a reasonable time. Even then, I submit that the non-presentation of further evidence is not necessarily fatal. Certain types of fraud and irregularities can be proved without the testimonies of handwriting experts or the testimonies of voters, watchers, inspectors and others who witnessed the same. There are fraud and irregularities which are patent on the face of the ballots and other election documents and paraphernalia. Ballots that are marked, ballots that are spurious, ballots written by the same hand, a ballot written by different hands, tampered tally sheets, false list of voters, falsified election returns, and other election documents can be appreciated without need of evidence aliunde. For this reason, the Tribunal cannot evade the duty to examine the protested ballots for the ballots are the best evidence to enable the court to determine the votes obtained by the protestant and the protestee. 3 Needless to state, until the Tribunal examines and appreciates the protested ballots it cannot dismiss the protest. I do not also subscribe to the ruling of the majority that the protestant abandoned her protest when she ran for Senator and discharged her duties. Abandonment in law means "voluntary relinquishment of all right, title, claim . . . with the intention of not reclaiming it," 4 In ascertaining abandonment, whether in election, property, or criminal litigations, ". . . intention is the first and paramount object of inquiry for there can be no abandonment without the intent to abandon." 5 Intention is subjective and can be inferred from the acts and conduct of a person. It is a question of fact. 6
In the case at bar, the Tribunal cannot resolve this question of fact for lack of competent evidence. The protestee has not adduced evidence to prove acts and omissions of the protestant which can be the basis for a finding that she intentionally abandoned her protest. Indeed, the protestee does not want the protest to be dismissed on a technicality but prays that it be decided on the merits. The lack of competent evidence on record notwithstanding, the majority ruled, to wit: . . . She knew that the term of office of the Senators who would then be elected would be six (6) years, to commence at noon on the thirtieth day of June next following their election and to end at noon of 30 June 2001. Knowing her high sense of integrity and candor, it is most unlikely that during her campaign she promised to serve the electorate as Senator, subject to the outcome of this protest. In short, she filed her certificate of candidacy for the Senate without any qualification, condition or reservation. (Emphasis supplied). Clearly, the majority merely relied on a deduction to support its conclusion that the protestant did not make any promise to serve the electorate as a Senator subject to the outcome of this protest. It deduced this conclusion from its knowledge of protestant's "high sense of integrity and candor." The argument is a non sequitur. If the protestant has candor, the conclusion ought to be that she should have bared to the electorate the pendency of her protest. A more fundamental reason prevents me from joining the majority. With due respect, I submit that the majority ruling on abandonment is inconsistent with the doctrine that an election contest is concerned less with the private interest of the candidates but more with public interest. Under a republican regime of government, the overarching object of an election contest is to seek and enforce the judgment of the people on who should govern them. It is not a happenstance that the first declaration of policy of our Constitution underlines in bright that "sovereignty resides in the people and all government authority emanates from them." 7 The first duty of a citizen as a particle of sovereignty in a democracy is to exercise his sovereignty just as the first duty of any reigning government is to uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova, 8 we emphatically held that ". . . once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be known without regard to the wishes or acts of the parties so much so that there can be no default, compromise nor stipulation of facts in this kind of cases." Wisely, this Tribunal has consistently demurred from dismissing election contests even on the ground of death of the protestee or the protestant. 9
The majority appears to stray away from this lodestar of our Constitution. It will dismiss the case at bar even while the protestee and the protestant are yet alive, even while the term of the 1992 president-elect has yet to expire, and even while the protestee and the protestant together plead that the Tribunal should determine the true will of the people by deciding their dispute on the merit and not on technicalities that trifle with the truth. I submit that it is the better stance for the Tribunal to decide this election contest on the merit and vindicate the political judment of the people which far surpasses in significance all other considerations. Our duty to tell the people who have the right to govern them cannot depend on the uncertain oscillations of politics of the litigants as often times they are directed by the wind of convenience, and not by the weal of the public. I proffer this postulate only because of the dominant public interest involved in the case at bar. This case does not involve an obscure office but the presidency. It concerns the first presidential election after the EDSA revolution. Only 877,398 votes separate the protestee and the protestant. Ballots in 13,500 precincts are contested by the revisors of the protestant which if found correct can materially affect the results of the election. The protestant has charged that nationwide irregularities were committed in the elections. The protestee, on the other hand, dismisses the protest as merely intended to keep the protestant in the limelight in preparation for her senatorial campaign. Even the protestee has pleaded that the protest be tried on its merit as it involves a matter of paramount and grave public interest. Considering these distinct facts, the Tribunal should not dismiss the protest on the ground of mootness. To be sure, the majority cultures the thesis that the dismissal of the case at bar will ". . . serve public interest, as it would dissipate the aura of uncertainty on the results of the 1992 presidential election." Dismissing the case on the tenuous technicality that it has become moot and academic will not tell the people who really won the last presidential election. Only the light of truth can pierce the uncertainty that has enveloped its results. It is with reason that the protestant has been joined by the protestee in the plea that this Tribunal decide their case on its merit so that once and for all, its result will be free from the badgerings of doubt. I join their plea for the people deserve the whole truth and in an election context a half-truth is a lie. I vote to continue hearing the election protest at bar and decide it on the merit without unnecessary delay. Francisco, J., concurs.
VITUG, J., dissenting: With all due respect, I find it rather difficult to agree with my peers on the dismissal by the Presidential Electoral Tribunal of P.E.T. Case No. 001 simply for its being moot and academic. It seems clear to me that neither the protestant nor the protestee would want the case dismissed outrightly on a technicality. The parties have expressed, both to their honor and credit, the view that it would instead be best to have the protest resolved on its merits in order to dispel any cloud of uncertainty on the choice of the electorate. The people themselves, I should think, are no less than keen in wanting to see the outcome of the protest. I am hardput, in fact, in trying to reconcile the resolution of the Tribunal with the pronouncement repeatedly made by the Supreme Court in previous cases, i.e., that an election contest not only concerns an adjudication of private interests but also calls for an imperative response to a paramount public need. Let it be here stressed that the office in question pertains to the highest position of the land. The submission that the protestant is deemed to have abandoned her protest because she ran in the May 1995 elections for the position of, and was proclaimed and so eventually took office as, Senator of the Republic is a conclusion, I fear, I am unable to share. Abandonment is personal, and it must be manifested in unequivocal terms by the person charged with it. If, as it so appears, the protestant has not to date "informed the tribunal whether (or not) after the completion of the revision of the ballots from her pilot areas she would present evidence in connection therewith," then the tribunal must act on this basis and decide on whatever it may have on hand with equal opportunity to the protestee to make his own submission of evidence if still desired. Considering that there appears to be no constitutional proscriptions involved, I vote to allow the tribunal to proceed with a final determination on the merits of the protest rather than a dismissal on the mere ground of abandonment.
KAPUNAN, J., dissenting: I beg to disagree with the thesis that P.E.T. Case No. 001 has been rendered moot and academic as a consequence of the protestant's election and assumption of office as Senator. The majority in support of its proposition asserts that "(I)n assuming the office of Senator, the herein Protestant has effectively abandoned or withdrawn this protest . . ." From this premise, the majority concludes that such abandonment or withdrawal operates to render moot and academic the instant election protest. When the protestant ran for the Senate last year, she was not the President of the country and there was nothing to relinquish. Abandonment is the giving up of a thing absolutely, indicating "intention to forsake or relinquish" the same. 1 In relation to public office, abandonment "must be total and under such circumstance as clearly to indicate an absolute relinquishment." 2 That is not the situation here, because when the protestant ran for presidency, she was not even an elective official and there was no position to abandon. Neither do I subscribe to the majority's theory that by filing her certificate of candidacy for the Senate, campaigning for said office and submitting herself to be voted upon in the elections, the protestant "had entered into a political contract with the electorate that if elected, she would assume the office of Senator, discharge its functions, and serve her constituency as such for the term for which she was elected." First, there is no evidence that she made such promise. On the contrary, I believe, she had made herself clear during the 1995 Senatorial campaign that she was not abandoning her protest, meaning that in the event she would be declared the winner in the 1992 Presidential elections, she may opt to assume the Presidency, thus shortening her term of office as Senator. When the voters made their choice for the Senate, they were fully aware that the protestant may not serve the full term of her office if she wins her protest. Despite this, the voters elected her as Senator. Second, if by filing her certificate of candidacy as Senator and campaigning for said office, she entered into a contract with the electorate that she will serve the full term of her office as Senator, in the same token, by filing her certificate of candidacy for the Presidency and campaigning for that office, she must necessarily have entered into a contract with the electorate that she will serve the full term of the Presidency if elected. Third, there has been several cases where members of Congress gave up their positions before their terms of office expired to accept appointments in the cabinet or other high-profile positions. To mention a few, the present Secretary of Justice Teofisto Guingona gave up his Senate seat a few years ago to become Executive Secretary. Congressman Salvador Escudero has just been named the new Secretary of Agriculture. Yet, there has not been any murmur that said officials have violated any political contract with the electorate that elected them to Congress. Moreover, expecting candidates to sit out and wait during the entire period in which a protest is resolved is unrealistic, and consigns our most promising men and women in this country to limbo. In many cases, election protests have not been decided promptly for reasons not necessarily attributable to the electoral bodies. In some instances, the protest had remained undecided before the term of the disputed office had run out. Given these circumstances, it would be utterly unjust for protestants to do nothing, not accept or run for public office, and simply wait for the protests to be decided, lest they be deemed to have abandoned them. This would be tantamount to a denial of the right to run for public office. The majority would seem to imply that the protestant also abandoned her protest when she (a) waived the revision of the remaining unrevised ballots from 4,017 precincts and, (b) failed to inform the Tribunal whether she still intends to present additional evidence after the completion of the revision of the ballots from the pilot areas. I would not so sweepingly conclude that the protestant abandoned her election protest by her act alone of waiving the revision of the remaining ballots. Her waiver could have been due to reasons other than that the majority speculatively imputes to her. It could have been based on her belief that the contested ballots in the 13,500 precincts, if and when properly appreciated, would sufficiently substantiate the allegations in her petition. Or she could have been impelled by the desire to expedite the electoral proceedings and minimize her expenses. With regard to the protestant's failure to inform the Tribunal whether she still intends to present additional evidence after the completion of the revision of the ballots from the pilot areas (as embodied in the resolution dated 21 October 1993), her "omission," likewise, does not amount to a waiver or abandonment of her election protest. Resolution of election cases, it must be stressed, is a continuous process albeit divided into various stages. These stages revision, technical examination, presentation of evidence and submission of memoranda are but parts of one whole procedure. Except for the technical examination of the ballots, wherein the parties are expressly given discretion whether or not to move for one 3 after completion of each stage, the proceedings necessarily move to the next step. The procedure will run its natural course pursuant to the rules of the Presidential Electoral Tribunal (PET). Since the phases or stages in the electoral protest are laid down in the rules, the parties are supposed to act in accordance with the sequential order of the proceedings without being required to manifest formally at each stage if they are willing to proceed to the next one. Hence, waiver of one stage or the remaining stages cannot be impliedly imputed to a party unless there is a manifest intentional and unequivocal statement or action to this effect. The least the Tribunal should have done was to direct the protestant to show cause why her protest should not be dismissed for failure to file the required information, which liberal process the Tribunal customarily accords the parties to find out the reasons for the omission. The protest cannot, therefore, be lawfully dismissed under Section 61 of the PET rules. Bear in mind that not only revision of the ballots but also reception of evidence 4 is required before the Tribunal can dismiss an election protest on the grounds that "the protestant will most probably fail to make out his case." In the instant protest, the revision of the ballots has hardly been completed and presentation of evidence, undoubtedly the most crucial aspect of the proceedings, has yet to commence. To utilize Section 61 of the PET rules to justify dismissal of the instant case at this early stage of the proceedings is to jump the gun on both the protestant and the protestee. It should be stressed that no less than the protestee himself has strongly and unequivocably expressed the sentiment in his memorandum that the protest be resolved on its merits because it involves a matter of paramount and grave public interest and its resolution would confirm his victory in the presidential election and that it would establish guiding and controlling principles or doctrines with respect to presidential election protest cases, thereby educating the bench and the bar and preventing indiscriminate filing of baseless protest cases a commendable gesture in adherence to democratic processes. Ours is a democracy where sovereignty resides in the people whose sovereign will is expressed through the ballot. It is, therefore, of paramount public interest that the electoral dispute be settled. Resolving the protest by the mere wave of the judicial wand without touching on the merits is not fair to the protestant. It is not fair to the Tribunal whose disposition of the case without solid facts to support it would raise more questions that it could answer and create needless speculations about its motives however well-intentioned they may be. It is not fair to the people who deserve to know, without the slightest doubt, who they really elected as President in the 1992 elections. It is, certainly, not fair to the protestee who should not be deprived the opportunity to remove once and for all whatever cloud that may have been cast on his election as President. Having granted the protestant's motion of August 16, 1995 to dispense with the revision of ballots and other election documents in the remaining precincts of the pilot areas where fraud was allegedly rampant, we ought to proceed to the next step, by giving both parties a chance to present their evidence. Under Rule 61 of the Rules of the Presidential Electoral Tribunal, if, after examination and proof of such evidence we would be convinced that the protestant would most probably fail to make out her case, then the case could be dismissed at once. This process would take a little more time, but it is solution which is fair and just to everyone and is the best way to finally resolve the doubt surrounding the 1992 presidential elections, thus help pave the way to true political stability and national recovery. I, therefore, vote to continue with the hearing of the election protest and decide it expeditiously. Mendoza, J., concurs.
Footnotes 1 18 SCRA 533 [1966]. 2 21 SCRA 402 [1967]. 3 27 SCRA 623 [1969]. 4 Citing Tuanda vs. Dionaldo, 17 SCRA 646 [1966]. 5 42 SCRA 10 [1971]. 6 Citing Eastern Broadcasting Corp. (DYRE) vs. Dans, 137 SCRA 628 [1985]; Salonga vs. Pao, 134 SCRA 438 [1985]. 7 202 SCRA 779 [1991]. 8 The section reads: Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for president and Vice- President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. 9 Supra note 1 at 538. 10 Supra note 2 at 407. 11 Supra note 5 at 14-15. 12 Supra note 3. 13 19 SCRA 520 [1967]. 14 46 Phil. 595 [1924]. 15 Supra note 5 at 15. 16 Section 4, Article VI, 1987 Constitution. 17 Section 1, Article XI, 1987 Constitution. 18 FLOYD R. MECHEM, Treatise on the Law of Public Officers and Employees, \\'a7 240, 155-156. 19 Article 234, Revised Penal Code, provides: Art. 234. Refusal to discharge elective office. The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office. 20 Rule 19, Rules of the Presidential Electoral Tribunal. 21 Rule 69, Id. 22 Rule 23, Id. 23 49 Mich. App. 128, 229 N.W. 2d 343, 349. 24 139 Or. 626, 10 P 2d 356, 357. 25 51 Ariz. 237, 75 P 2d 696, 698. 26 ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101, citing Rubi vs. Provincial Board of Mindoro, 38 Phil. 660 [1919]. 27 Rule 19, Rules of the Presidential Electoral Tribunal. PUNO, J., dissenting: 1 Aside from the protestee and protestant, the other candidates were Eduardo M. Cojuangco, Jr., Salvador H. Laurel, Imelda R. Marcos, Ramon V. Mitra, and Jovito R. Salonga. 2 The other candidates garnered the following votes: Cojuangco, Jr. (4,116,376); Laurel (770,046); Marcos (2,338,294); Mitra (3,316,661); and Salonga (2,302,124). See Resolution No. 2 of both Houses of the Congress of the Philippines adopted June 22, 1992. 3 Francisco, Vicente, How to Try Election Cases, 1973 ed., p. 253. 4 Black's Law Dictionary, 6th ed., p. 2. 5 Ibid., citing Roebuck v. Mecosta Country Road Commission 49 Mich. App. 128, 229 NW2d 343, 345; See also Moreno, Phil. Law Dictionary, 3rd ed., pp. 2-4. 6 Ibid., p. 3. 7 Section 1, Article II of the Constitution. 8 42 SCRA 10 [1971]. 9 Sibulo vda. de Mesa vs. Mencias, 18 SCRA 533 [1966]; Silverio vs. Castro, 19 SCRA 520 [1967]; and Lomugdang vs. Javier 21 SCRA 402 [1967]. KAPUNAN, J., dissenting: 1 BLACK's LAW DICTIONARY, 2 citing Dober v. Ukase Inv. Co., 139 Or. 626, 10 P. 2d 356, 357. 2 Id., citing McCall vs. Cull, 51 Ariz. 237, 75; P. 2d 696, 698. 3 Rule 41, Rules of the Presidential Electoral Tribunal. 4 Rule 82. As public interest demands the speedy termination of the contest, the Tribunal may, after the issues have been joined, require the protestant to indicate, within a fixed period, the province or provinces numbering not more than three best exemplifying defrauds or irregularities alleged in his petitioner; and the revision of ballots and reception of evidence will begin with such province. If upon examination of such ballots and proofs, and after making reasonable allowances, the Tribunal is convinced that, taking all the circumstances into account, the protestant will most probably fail to make out his case, the contest may forthwith be dismissed, without further consideration of the other provinces mentioned in the contest. (emphasis supplied).
Republic of the Philippines SUPREME COURT Manila PRESIDENTIAL ELECTORAL TRIBUNAL P.E.T. Case No. 003 January 18, 2008 LOREN B. LEGARDA, protestant, vs. NOLI L. DE CASTRO, protestee. RESOLUTION QUISUMBING, J.: On June 23, 2004, Congress sitting as the National Board of Canvassers (NBC) proclaimed 1 protestee Noli L. de Castro the duly elected Vice-President of the Republic of the Philippines. The official count of the votes cast for Vice-President in the May 10, 2004 elections showed that the protestee obtained the highest number of votes, garnering 15,100,431 votes as against the 14,218,709 votes garnered by the protestant Loren B. Legarda, who placed second, in a field consisting of four candidates for Vice-President. On July 23, 2004, the protestant filed this protest with this Tribunal praying for the annulment of the protestee's proclamation as the duly elected Vice-President of the Republic of the Philippines. 2
The protest has two main parts. The First Aspect originally covered "all the erroneous, if not manipulated, and falsified results as reflected in the final canvass documents" for 9,007 precincts in six provinces, one city and five municipalities. 3
Protestant avers that the correct results appearing in the election returns were not properly transferred and reflected in the subsequent election documents and ultimately, in the final canvass of documents used as basis for protestee's proclamation. Protestant seeks the recomputation, recanvass and retabulation of the election returns to determine the true result. The Second Aspect required revision of ballots in 124,404 precincts specified in the protest. 4
The Tribunal confirmed its jurisdiction over the protest and denied the motion of protestee for its outright dismissal. Protestee filed a motion for reconsideration arguing in the main that the Tribunal erred in ruling that the protest alleged a cause of action sufficient to contest protestee's victory in the May 2004 elections. 5
On March 31, 2005, the Tribunal ruled that: On the matter of sufficiency of the protest, protestee failed to adduce new substantial arguments to reverse our ruling. We hold that while Pea v. House of Representatives Electoral Tribunal on requisites of sufficiency of election protest is still good law, it is inapplicable in this case. We dismissed the petition in Pea because it failed to specify the contested precincts. In the instant protest, protestant enumerated all the provinces, municipalities and cities where she questions all the results in all the precincts therein. The protest here is sufficient in form and substantively, serious enough on its face to pose a challenge to protestee's title to his office. In our view, the instant protest consists of alleged ultimate facts, not mere conclusions of law, that need to be proven in due time. Considering that we find the protest sufficient in form and substance, we must again stress that nothing as yet has been proved as to the veracity of the allegations. The protest is only sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her case pursuant to Rule 61 of the PET Rules. Although said rule only pertains to revision of ballots, nothing herein prevents the Tribunal from allowing or including the correction of manifest errors, pursuant to the Tribunal's rule-making power under Section 4, Article VII of the Constitution. On a related matter, the protestant in her reiterating motion prays for ocular inspection and inventory-taking of ballot boxes, and appointment of watchers. However, the Tribunal has already ordered the protection and safeguarding of the subject ballot boxes; and it has issued also the appropriate directives to officials concerned. At this point, we find no showing of an imperative need for the relief prayed for, since protective and safeguard measures are already being undertaken by the custodians of the subject ballot boxes. WHEREFORE, protestee's motion for reconsideration is hereby DENIED WITH FINALITY for lack of merit. Protestant's reiterating motion for ocular inspection and inventory-taking with very urgent prayer for the appointment of watchers is also DENIED for lack of showing as to its actual necessity. Further, the protestant LOREN B. LEGARDA is ORDERED to specify, within ten (10) days from notice, the three (3) provinces best exemplifying the manifest errors alleged in the first part of her protest, and three (3) provinces best exemplifying the frauds and irregularities alleged in the second part of her protest, for the purpose herein elucidated. Lastly, the Tribunal hereby ORDERS the Commission on Elections to SUBMIT, within 30 days hereof, the official project of precincts of the May 2004 Elections. SO ORDERED. 6
On April 11, 2005, protestant identified three (3) provinces as pilot areas best exemplifying her grounds for the First Aspect of the protest. She chose the provinces of Lanao del Sur, Lanao del Norte, and Surigao del Sur with the following number of protested precincts: 1,607, 2,346 and 350, respectively, or a total of 4,303 out of the original 9,007 precincts. 7
On June 21, 2005, the Tribunal ascertained 8 the number of ballot boxes subject of the protest, to wit: The Tribunal Resolved to NOTE the Letter dated 30 May 2005 filed by Executive Director Pio Jose S. Joson, COMELEC, in compliance with the Letter dated 14 April 2005 of Atty. Luzviminda D. Puno, Acting Clerk of the Tribunal, informing the Tribunal that one thousand four hundred fifty-four (1,454) ballot boxes are involved in the precincts of the province of Surigao del Sur which the protestant has identified to the Tribunal as best exemplifying the irregularities in connection with the 10 May 2004 National and Local Elections. Accordingly, without prejudice to its recomputation, the number of ballot boxes involved in the precincts of the provinces which the protestant has identified to the Tribunal as best exemplifying the irregularities in connection with the said elections are as follows: Lanao del Sur - 1,568 Lanao del Norte - 2,317 Surigao del Sur - 1,454 Cebu City - 10,127 Pampanga - 5,458 Maguindanao - 1,755 Total - 22,679 ballot boxes involved in the precincts x P500.00 P11,339,500.00 On November 2, 2005 protestant moved to withdraw and abandon almost all pilot precincts in the First Aspect except those in the province of Lanao del Sur. 9 On November 22, 2005, the Tribunal granted the said motion withdrawing and abandoning the protest involving the manifest errors in the municipalities of Lanao del Norte and Surigao del Sur. 10
Thereafter, proceedings duly ensued concerning both the First and Second Aspects. Former Associate Justice Bernardo P. Pardo as Hearing Commissioner 11 heard the presentation of evidence of both parties for the First Aspect. Subpoenas were issued to the witnesses of the protestant, e.g. the President/General Manager of Ernest Printing Corporation 12 and then Commission on Elections Chairman Benjamin Abalos. 13 On August 28, 2006, a preliminary conference was called by Hearing Commissioner Bernardo P. Pardo to schedule the presentation of evidence. The latter then ordered as follows: Pursuant to the Resolution of the Tribunal dated 22 August 2006, setting the preliminary conference of the parties with the Hearing Commissioner today, the designated Hearing Commissioner called the preliminary conference in order to consider the order of hearing and presentation of evidence of the parties according to the procedure prescribed in the Resolution of the Tribunal of 1 August 2006, under paragraph B (1 and 2). The following are the appearances: 1) Protestant Loren B. Legarda, in person; 2) Atty. Sixto S. Brillantes, Jr. and Atty. Jesus P. Casila, for the protestant; 3) Protestee Noli L. de Castro did not appear; 4) Atty. Armando M. Marcelo and Atty. Carlo Vistan, for the protestee. Atty. Brillantes manifested that the protestant is ready to adduce testimonial and documentary evidence on a date to be scheduled and agreed upon by the parties; they have about seven witnesses to testify on the first aspect as indicated in the Tribunal's Resolution of 1 August 2006. He suggested 6 September 2006 as the initial date of the hearing. Atty. Marcelo stated that he was leaving for abroad on 6 September 2006 for one month and suggested a hearing after his return in October 2006. At any rate, protestee has a pending motion for reconsideration of the Tribunal's Resolution of 22 August 2006 designating a retired Justice of the Supreme Court as Hearing Commissioner. They wanted an incumbent Justice of the Supreme Court or an official of the Tribunal who is a member of the Bar to be the designated Hearing Commissioner. The undersigned Hearing Commissioner suggested that the initial hearing be held on 4 September 2006, at 10:00 a.m., when protestee's counsel will still be in town, without prejudice to the resolution of the Tribunal on his motion for reconsideration. The undersigned Hearing Commissioner suggested to protestant's counsel to submit by this afternoon the list of the names of the proposed witnesses and documents to be produced so that the proper process may be issued to them. The undersigned Hearing Commissioner set the initial hearing tentatively on Monday, 4 September 2006, at 10:00 a.m., at the same venue, subject to the Tribunal's ruling on protestee's motion for reconsideration of the person of the Hearing Commissioner, and protestant to submit by this afternoon the list of witnesses and documents to be produced at the hearing. IT IS SO ORDERED. 14
Several hearings on the First Aspect were held wherein the protestant adduced evidence and the protestee interposed his continuing objection to such in the form of motions and comments. Months of continuous trial took place until the Hearing Commissioner made his final report of the proceedings for detailed consideration by the Tribunal. On January 31, 2006, while the case was sub judice, the Tribunal ordered both parties to refrain from sensationalizing the case in the media. Its extended resolution on the matter reads as follows: On December 12, 2005, the re-tabulation of election returns (ERs) from the ten (10) protested municipalities of Lanao del Sur commenced. According to the report submitted by the Acting Clerk of the Tribunal, Atty. Maria Luisa D. Villarama, the correction team was able to re-tabulate only the ERs from four (4) of the ten (10) protested municipalities of Lanao del Sur, namely, Balindong, Masiu, Mulondo and Taraka. The ERs of the other six (6) protested municipalities were not found inside the ballot boxes collected from the House of Representatives, but found were the ERs from municipalities not subject of the protest. Therefore, acting on the aforementioned report of the Acting Clerk, the Tribunal resolves to REQUIRE Hon. Roberto Nazareno, Secretary General of the House of Representatives and Atty. Artemio Adasa, Jr., Deputy Secretary General for Operation, of the House of Representatives, within a non-extendible period of five (5) days from notice, to (a) DELIVER to the Tribunal the election returns and other election documents/paraphernalia used in the May 2004 National/Local elections for the remaining six (6) protested municipalities of Lanao del Sur, namely (1) Bacolod-Kalawi; (2) Ganassi; (3) Kapai; (4) Sultan Gumander; (5) Tamparan; and (6) Wao; (b) EXPLAIN why the election returns and other election documents and paraphernalia which were turned over to the PET Retrieval Team are incomplete when compared to the COMELEC's total number of clustered precincts for Lanao del Sur; and (c) SUBMIT to the Tribunal the complete list of all the election returns, Provincial/District Certificates of Canvass and Statements of Votes and other election documents and paraphernalia used in the May 2004 National and Local Elections for the province of Lanao del Sur which were in its official custody. In the resolution dated December 6, 2005, the Tribunal granted protestant's motion to suspend the remittance of additional cash deposit amounting to P3,882,000 as required in the resolution of November 22, 2005. Protestant also manifested in said motion that she will make the required cash deposit sometime in the year 2006. Thus, the Tribunal resolves to REQUIRE protestant to comply with the resolution of November 22, 2005 requiring her to make additional cash deposit of P3,882,000 within ten (10) days. On another matter, the Presidential Electoral Tribunal notes the following news reports: (1) In an article entitled "Recount shows fraud, says Legarda" appearing in the December 13, 2005 issue of The Manila Times, protestant Legarda said that the election returns from Congress had been tampered after initial retabulation of votes by the Tribunal showed that the lead of protestee De Castro over her has widened. She added that this discovery confirmed her claim of massive poll fraud in favor of protestee in the 2004 election. (2) In an article entitled "Intel feelers offer proof of poll fraud to Loren" published in the December 13, 2005 issue of The Daily Tribune, sources from protestant's legal team said that feelers from the military's intelligence service arm have reached their camp offering videotapes of cheating in the 2004 elections for a price they cannot afford. (3) In another article entitled "Election returns altered inside Congress- Loren" published in the December 15, 2005 issue of Philippine Daily Inquirer, protestant claimed that the altering of election returns from Lanao del Sur occurred right inside Congress as borne out by the "spurious" returns being retabulated by the Tribunal. She said the crime could have been perpetrated by the operatives of protestee. (4) In a news article entitled "Cebu recount shows Noli, Loren votes tally with NBC" appearing in the January 6, 2006 issue of The Manila Times, Atty. Romulo Macalintal, counsel of protestee, stated that "the initial recount in Lapu-lapu showed that there was no tampering of the ballot boxes in the city," and further noted that the four (4) out of the 40 ballot boxes "contained tampered or spurious ballots, but these are not connected to the protest of Senator Legarda but on local protests." (5) In an article entitled "Noli condemns tampering of ballots" appearing in the January 6, 2006 issue of Manila Standard Today, Atty. Armando Marcelo said that their revisors at the PET discovered that several ballots of Legarda had been substituted with fake and spurious ballots. Atty. Macalintal added that "the substitution of ballots was so clear, that the security markings of the substitute ballots were not reflected or visible or that the ultraviolet markings of the COMELEC seal do not appear or are not present", and that "these ultraviolet markings are readily visible in a genuine ballot once lighted with an ultraviolet light." (6) In an article entitled "No cheating in Cebu, Noli's lawyer insists," published in the January 19, 2006 issue of Philippine Daily Inquirer, Atty. Macalintal said that "the results of the actual count of the ballots for Legarda and De Castro from the cities of Mandaue and Lapu-lapu tallied with the results as reflected in the election returns and tally boards. There was no sign of any tampering of the results of the ballot count as well as the votes reflected on the returns and tally boards." He also said that protestant Legarda is already estopped from questioning the results of the election in these cities since she failed to object to the returns. (7) In an article entitled "GMA-Noli poll win in Cebu affirmed," published in the January 19, 2006 issue of The Philippine Star, it was reported that Atty. Macalintal, in his speech before the Rotary Club of Pasay City, denied protestant's claim that 90 percent of the ballots from two major cities of the province were found to be spurious by the Tribunal. He added that "if a candidate would allow himself to be cheated by 90 percent, then he or she has no business to be in politics." (8) In an article entitled "Why Noli is unacceptable" appearing in the January 20, 2006 issue of The Daily Tribune, protestant "told the media that the real ballots from Mandaue City and Lapu-lapu City were 'clearly substituted with fakes so that they would correspond with the similarly spurious results reflected in the election returns (ERs).'" Surely, the parties do not harbor the idea that the re-tabulation of election returns and revision of ballots is the end of the election protest. They are merely the first phase of the process and must still pass closer scrutiny by the Tribunal. The great public interest at stake behooves the Tribunal to exercise its power and render judgment free from public pressure and uninterrupted by the parties' penchant for media mileage. Therefore, in view of the foregoing reports where press statements of both parties appeared as an attempt to influence the proceedings, convince the public of their version of facts, and create bias, prejudice and sympathies, the Tribunal resolves to WARN both parties and counsels from making public comments on all matters that are sub judice. Finally, acting on the pleadings filed in this electoral protest case, the Tribunal further Resolves to (a) NOTE the Comment on Protestee's Motion to Allow Revisors to Examine All Ballots dated January 24, 2006, filed by counsel for protestant Legarda, in compliance with the resolution of January 17, 2006, informing the Tribunal that she interposes no objection and opposition to the motion and GRANT the aforesaid motion of the protestee; (b) DIRECT all Head Revisors to ALLOW the parties to examine the ballots within a reasonable time; (c) NOTE the Manifestation dated January 24, 2006, filed by counsel for protestant relative to the Motion to Intervene filed by Intervenor/ Movant Amytis D. Batao, informing the Tribunal that she is not waiving the revision of the thirty-five (35) ballot boxes subject of the electoral protest for the mayoralty post of Carmen, Cebu, and proposing that priority be given and extended to the same so that upon completion of the revision by the Tribunal, said ballot boxes can be returned to the Regional Trial Court of Mandaue City, at the earliest time possible; and (d) DENY the above Motion to Intervene of Intervenor/Movant Amytis D. Batao, with regard to the return of the ballot boxes considering that the Tribunal has priority in their possession and examination." Ynares Santiago, J., no part. 15
Revision of ballots was also conducted for the Second Aspect in the Tribunal's premises by the duly designated officials and trained personnel with both parties duly represented. After ten months of continuous work by twenty-four revision teams, under the supervision of Atty. Orlando Cario as the designated Consultant, the revision of the ballots from the pilot province of Cebu was completed. Revision also started for the second pilot province of Pampanga, but was suspended after the Tribunal granted the protestee's Motion for Partial Determination of Election Protest Based on the Results of the Revision of Ballots of the Province of Cebu and the Recanvass of Election Returns from Lanao Del Sur and to Hold in Abeyance Revision of Ballots from Pampanga. 16
On May 3, 2007, the protestant was required to deposit P3,914,500 for expenses necessary for the continuation of the revision of ballots. 17 But protestant failed to pay on the due date. Thus, protestee moved to dismiss the protest. The Tribunal extended the period for protestant to make the necessary deposit. Even with this extension, she still failed to pay. Thus, in a Resolution dated June 5, 2007, the Tribunal partially granted the protestee's motion to dismiss pursuant to Rule 33 18 of PET rules, and ordered the dismissal of the Second Aspect of the protest as follows: PET Case No. 003 (Loren B. Legarda vs. Noli L. de Castro). - Acting on the protestee's Motion to Dismiss dated May 9, 2007, the Tribunal Resolved to (a) PARTIALLY GRANT the aforesaid motion pursuant to Rule 33 of the 2005 PET Rules; and (b) DISMISS the second aspect of the protest (revision of ballots), for protestant's failure to make the required deposit. The Tribunal further Resolved to DENY the request of Atty. Eric C. Reginaldo in his letter dated May 29, 2007 that he be furnished with a copy of the petition in this case for case study, as he is neither a party nor a counsel of any party in this protest. 19
On June 13, 2007, Hearing Commissioner Bernardo P. Pardo submitted to the Tribunal a Report of the Proceedings of the First Aspect. 20
On June 18 2007, protestant filed an Urgent Motion to Resolve First Aspect of the Protest, stating that she formally moved for the immediate resolution of the submitted portion of the First Aspect of the protest. 21 Protestee did not interpose any objection to this motion. On July 10, 2007, the Tribunal resolved to note the report of the Hearing Commissioner. In response to the motion filed by the protestant, the Tribunal required the parties to submit their respective memoranda within twenty days from notice, pursuant to Rule 61 22 of the PET Rules. 23
On August 2, 2007, by counsel protestant submitted her memorandum. 24 On August 16, 2007, also by counsel protestee filed his memorandum. 25
On October 1, 2007, Hearing Commissioner Bernardo P. Pardo submitted his Final Report of the Proceedings on the First Aspect. After a thorough analysis of the parties' memoranda and the results of the proceedings on the protest, he recommended the dismissal of the First Aspect. 26
For her part, protestant filed a memorandum stating that based on the pieces of evidence she presented, both documentary and testimonial, she has shown that electoral fraud or cheating was committed through the so-called dagdag-bawas strategy in the elections for President and Vice-President held last May 14, 2004. Protestant in particular submitted that electoral fraud was perpetuated as follows: 1. That the correct votes of the parties were properly recorded and tabulated in the election returns (ERs), wherein she garnered a higher number of votes over protestee De Castro; 27
2. That when the ERs were canvassed at the municipal level, the ER results were "wrongly and erroneously" transposed and transferred to the Statement of Votes by Precinct (SOV-P), such that the protestee was given a higher number of votes; 28
3. That the inaccurate results shown in the SOV-P were totaled and transferred to the Municipal Certificate of Canvass (MCOC), with protestee prevailing over protestant; 29
4. That the MCOC, with incorrect totals, was transmitted to the Provincial Board of Canvassers, wherein the inaccurate MCOC totals were transposed to the Statement of Votes by Municipalities (SOV-M); 30
5. That the numbers reflected in the individual SOV-Ms were totaled, and the sum for the whole province was indicated in the Provincial Certificate of Canvass (PCOC); 31
6. That the PCOCs, with the erroneously transposed totals stemming from the incorrect SOV-Ps, were the ones canvassed by Congress, acting as the National Board of Canvassers for the presidential and vice-presidential positions; 32 and 7. That Congress, sitting as the National Board of Canvassers, merely "noted" and denied protestant's request to view the precinct-source ERs, and proceeded to canvass the "already-manipulated/dagdag-bawas" PCOCs, resulting in the flawed and farcical victory of protestee De Castro. 33
Protestant avers that fraud, by means of the anomalous election practices, was sufficiently proven by using her sample-pilot precincts in two municipalities in Lanao del Sur, particularly Balindong and Taraka. She likewise alleges that the "dagdag- bawas" scheme, which was perpetrated through the deliberate and erroneous transposition of results from the authentic ERs to the SOV-Ps, was further aggravated by an alleged cover-up operation to hide the same. According to protestant, the Congress-retrieved copies of the ERs which tally with the SOV-Ps, were fake and spurious; they were intended to cover-up the electoral fraud committed. Protestant submits that the correct voting results are those reflected in the COMELEC and NAMFREL's copies of the ERs, not those in the copies retrieved from Congress. Protestant further claims that while she presented pieces of evidence, both testimonial and documentary, in only two municipalities of Lanao del Sur, i.e., Balindong and Taraka, to prove the electoral fraud perpetrated through the dagdag- bawas strategy, she could have shown that such fraudulent machination was replicated in several other municipalities of Lanao del Sur and other provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat, and Lanao del Sur if she had enough time. Protestee, for his part, argues that the Congress-retrieved ERs are public documents as defined under Section 19 (a), 34 Rule 132 of the Rules of Court, and thus, they enjoy the presumption of regularity accorded thereto, and they are prima facie evidence of the facts stated therein. He avers that there is prima facie presumption that the Congress-retrieved copies of the ERs are genuine, authentic and duly executed. Protestee submits that protestant has failed to rebut such presumption with clear and convincing evidence. Protestee adds that a blank or unused ER form duly authenticated by the COMELEC, with the correct and complete set of security features and markings, should have been marked and offered as evidence, to serve as basis for comparison with the various sets of ERs presented to prove the genuiness of the security features and markings in the ER forms. On this score, according to protestee, the protestant's counsel has failed in his task. At any rate, protestee points out that the witnesses presented by protestant, i.e., COMELEC Chairman Benjamin S. Abalos and Mr. Robert Payongayong of the Ernest Printing Corporation, testified that they were able to discern security features and markings in the Congress-retrieved copies of the ERs. Protestee also claims that when Mr. Payongayong testified about the security features on the Congress' copies, he was shown only a sample set thereof, and was not able to examine all Congress' copies being contested. Protestee thus concludes that the Tribunal cannot rely on the testimonies of the protestant's witnesses debunking the authenticity of the Congress-retrieved copies vis--vis the other sets of ER copies. Protestee further contends that, assuming arguendo that the results reflected in the COMELEC, NAMFREL and MBOC's 35 copies of the ERs are re-tabulated, in lieu of the results in the Congress-retrieved copies, or even if all the votes in the 497 precincts included in the pilot areas, as well as in the remaining protested precincts in the First Aspect, are counted in favor of protestant, said votes would be insufficient to overcome the lead of the protestee totaling 881,722 votes. Hence, in view of the failure of the protestant to make out her case for the First Aspect of the protest, the same and ultimately the protest in its entirety, must be dismissed without consideration of the other provinces mentioned. The Hearing Commissioner further recommended, following the precedent set in Defensor-Santiago v. Ramos, 36 that the protest be dismissed for being moot and academic due to abandonment and withdrawal resulting from protestant's election and assumption of office as senator. He also emphasized that assuming that dagdag- bawas had indeed occurred and that the results in the COMELEC's ER copies indicated in Annex "A" were to be used for re-tabulation, protestant would be entitled to an additional 4,912 votes for the municipality of Taraka and 5,019 votes for Balindong, or a total of 9,931 votes, which is not adequate to surpass protestee's lead of 881,722 votes over protestant. On protestant's charges of electoral fraud allegedly aggravated by a cover-up operation that switched or exchanged the Congress' ER copies with spurious ones, the Hearing Commissioner stressed that the Congress-retrieved ERs are public documents which enjoy the presumption of regularity and are prima facie evidence of the facts stated therein. He concluded that the protestant failed to adequately and convincingly rebut the presumption. The Hearing Commissioner also emphasized that protestant failed to substantiate sufficiently her claim that the Congress- retrieved ERs are spurious and were switched with the authentic copies during an alleged break-in at the storage area of the House of Representatives as no evidence was presented to prove such break-in. Hence, the alleged discrepancies found in NAMFREL, MBOC and COMELEC's copies of the ERs are insufficient to exclude the Congress-retrieved ER copies from the re-tabulation. The Hearing Commissioner also observed that in 11 out of the 51 precincts in Balindong, Lanao del Sur, there are similar entries in the Congress-retrieved ERs and in the COMELEC's copies of the ERs, where protestant garnered a higher number of votes over protestee, while the entries in the respective SOV-Ms are different in that the protestee received more votes, belying protestant's assertion that the Congress-retrieved ERs should all be disregarded since the results therein differ from those in the COMELEC's copies of ERs and that they have been manipulated to favor protestee. Consequently, according to the Hearing Commissioner's report, protestant failed to make out her case. Thus, the Hearing Commissioner recommended that the protestant's Motion to Resolve the First Aspect of the Protest under consideration should be denied, and consequently, the protest itself, be dismissed for lack of legal and factual basis, as the pilot-tested revision of ballots or re-tabulation of the certificates of canvass would not affect the winning margin of the protestee in the final canvass of the returns, in addition to the ground of abandonment or withdrawal by reason of her candidacy for, election and assumption of office as Senator of the Philippines. 37
After thorough deliberation and consideration of the issues in this case, this Tribunal finds the abovestated recommendations of its Hearing Commissioner well-taken, and adopts them for its own. Further, we are also in agreement that the protestant, in assuming the office of Senator and discharging her duties as such, which fact we can take judicial notice of, 38 has effectively abandoned or withdrawn her protest, or abandoned her determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate. The most relevant precedent on this issue is Defensor-Santiago v. Ramos, 39 a decision rendered by this Tribunal, which held that: The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of which coincides with the last three years of the term of the President elected in the 11 May 1992 synchronized elections. The latter would be Protestant Santiago's term if she would succeed in proving in the instant protest that she was the true winner in the 1992 elections. In assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the language of Moraleja, abandoned her "determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate." Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all-[too] crucial political stability of the nation during this period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public interest implications thereof, on the following grounds: (1) The petition is insufficient in form and substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible. Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In sum, if an election protest may be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. 40
In the case at bar, protestant's tenure in the Senate coincides with the term of the Vice-Presidency 2004-2010, that is the subject of her protest. In Defensor-Santiago v. Ramos, the protestant's tenure in the Senate also coincided with the term of the Presidency she was vying for. Like the protestant in the aforementioned case, the protestant in the case at bar filed her certificate of candidacy for the Senate, campaigned for the office, assumed office after election, and discharged the duties and functions of said office. Thus, we agree concerning the applicability of the Defensor-Santiago case as a precedent in the resolution of the present protest, though they differ in that Defensor-Santiago's case involves the Presidency while Legarda's protest concerns only the Vice-Presidency. On the matter of the alleged spurious ER copies, we agree with the protestee that the protestant had not adequately and convincingly rebutted the presumption that as public documents, the Congress-retrieved ER copies, used for the proclamation of the protestee by the NBC, are authentic and duly executed in the regular course of official business. The evidence adduced by protestee to show that the supposed security features and markings in the Congress-retrieved ERs and the COMELEC/ NAMFREL's copies are different, did not categorically establish that the Congress- retrieved ERs are fake and spurious. To overcome the presumption of regularity, there must be evidence that is clear, convincing and more than merely preponderant. Absent such convincing evidence, the presumption must be upheld. 41 In fact, the records show that even the witnesses presented by the protestant testified that they were able to discern security features and markings in the Congress-retrieved ERs. The records also show that witnesses were not made to examine all Congress- retrieved ERs in making observations relative to security features and markings, but only a sample set thereof was utilized, resulting in grave insufficiency in the evidence presented by protestant. As to the alleged break-in in Congress, which allegedly facilitated the switching of ERs, no conclusive evidence has been given. One of the protestant's own witnesses, Atty. Artemio Adasa, Deputy General for Legislative Operations of the House of Representatives, categorically denied that a break-in and a switching of ERs had occurred in Congress. 42
At any rate, as pointed out by protestee, even assuming arguendo that all the votes in the 497 precincts included in the pilot areas for the First Aspect with approximately 99,400 votes are considered in favor of protestant, still the protestant would not be able to overcome the lead of the protestee. The margin in favor of protestee adds up to a total of 881,722 votes, and it would take much more than a hundred thousand votes to overcome this lead. This is what the protestant had set out to do in her protest before the Tribunal, but unfortunately she failed to make out her case. 43 In fact, Taraka and Balindong, the only two municipalities on which protestant anchors her arguments for the First Aspect, would only yield an additional 9,931 votes (4,912 votes for Taraka and 5,019 votes for Balindong), a mere fraction of the lead of protestee over protestant. To say that she could have shown that such fraudulent machination was replicated in several other municipalities of Lanao del Sur and other provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat and Lanao del Sur if she had enough time, is mere conjecture and can not be considered convincing by this Tribunal. It is the protestant herself who admits that she was able to adduce evidence only in Taraka and Balindong, for lack of time. But this Tribunal has been liberal in granting her plea for time extension. To say that the protestant had shown enough evidence to prove that the whole or even half (440,862) 44 of the lead of the protestee over the protestant is spurious, would go against the grain of the evidence on hand. One cannot say that half a million votes were illegally obtained based on unclear evidence of cheating in less than ten thousand. The protestant has been afforded ample opportunity to adduce evidence in her behalf for the First Aspect of the protest but the evidence presented is simply insufficient to convince the Tribunal to render invalid all or even half of the 881,722 votes that protestee had over her in the last elections for Vice-President. WHEREFORE, the First Aspect of the protest is hereby DISMISSED for lack of legal and factual basis, as the pilot-tested revision of ballots or re-tabulation of the certificates of canvass would not affect the winning margin of the protestee in the final canvass of the returns, in addition to the ground of abandonment or withdrawal by reason of protestant's candidacy for, election to and assumption of the office of Senator of the Philippines. The Second Aspect, having been already DISMISSED on June 5, 2007, pursuant to Rule 33 of this Tribunal, the entire Protest is now deemed DISMISSED and TERMINATED. SO ORDERED. Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Nachura, Reyes, Leonardo-de-Castro, JJ., concur. Chico-Nazario, J., on official leave. Velasco, Jr., J., on leave. Footnotes 1 PET rollo, Vol. I, pp. 39-41. 2 Id. at 3-36. 3 Id. at 9-11. 4 Id. at 11-13. 5 Id. at 511. 6 Id. at 514-516. 7 Id. at 10; 527. 8 Id. at 660. 9 PET rollo, Vol. II, pp. 1007-1010. 10 Id. at 1059-1061. 11 Id. at 1753, August 1, 2006 PET Resolution. x x x x A. Hearing Commissioner- 1. Designation.-The Tribunal may delegate the reception of evidence to a Hearing Commissioner who may be a Member of the Tribunal or an official of the Tribunal who is a member of the Philippine Bar or a retired Justice of the Supreme Court who is willing to accept the designation. x x x x 12 PET rollo, Vol. III, pp. 2135-2140. SUBPOENAE AD TESTIFICANDUM ET DUCES TECUM TO: The President/General Manager Ernest Printing Corporation 29 M.H. Del Pilar Street Between 3 rd and 4 th Avenues, Grace Park Caloocan City GREETINGS: You are hereby commanded: (1) to appear in person before the Presidential Electoral Tribunal and its duly designated Hearing Commissioner Ret. Justice Bernardo P. Pardo, during the scheduled hearing/ proceedings of the above-entitled case on November 3, 2006, Friday, at ten o'clock in the morning at the Division Session Hall, Ground Floor, New SC Building and then and there to testify under oath on the following matters and/or subjects - "The DETAILS on the aspect and on the matter of the PRINTING of the Comelec-contracted and ordered copies of the ELECTION RETURNS and other election documents, if any, as prepared and printed by the Ernest Printing Corporation, which printed documents were used in the May 10, 2004 elections, and in particular, on matters respecting the placing and/or incorporating in the said election documents, of some or several secret marks or any other security feature/s, if any including some other details material and relevant to and/or related to or connected with the AUTHORITY of Ernest Printing Corporation to undertake such actual printing of the said election returns and other election documents." (2) to bring with you the following - "Any and all documents such as CONTRACTS, AGREEMENTS and/or AWARDS between Ernest Printing Corp. and COMELEC that would show and prove the scope of the AUTHORITY of Ernest Printing Corporation to undertake the PRINTING of the election returns and other election documents, as extended or granted unto it by the Commission on Elections; as well as any and all other documents on any pertinent matter/s and subject/s relative to and/or connected with, the contracted or awarded PRINTING of election returns and other election documents to the said Ernest Printing Corporation." FAIL NOT UNDER PENALTY OF LAW. WITNESS the Honorable Bernardo P. Pardo, Ret. Associate Justice, this 25 th day of October 2006. (Sgd.) MA. LUISA D. VILLARAMA Clerk of the Tribunal 13 PET rollo, Vol. II, pp. 1842-1847. SUBPOENAE AD TESTIFICANDUM ET DUCES TECUM TO: Chairman Benjamin Abalos Commission on Elections Main Office, Aduana Intramuros, Manila GREETINGS: You are hereby commanded: (1) to appear in person before the Presidential Electoral Tribunal and its designated Honorable Hearing Commissioner Ret. Justice Bernardo P. Pardo, during the scheduled hearing/ proceedings of the above-entitled case at 2:00 o'clock in the afternoon of Monday, September 18, 2006, Division Session Hall, Ground Floor, New SC Building and then and there to testify on the originals of the COMELEC copies of the various election documents herein below enumerated, described and specified, and also to further testify on other matters related to the said various election documents in the possession and custody of the Commission on Elections, coming from and/or pertaining to, the Municipalities of Balindong and Taraka, Lanao del Sur as well as the Province of Lanao del Sur; (2) bring with you to the Tribunal the following documents, therein below specified: [a] The ORIGINALS of the ELECTION RETURNS-copies for the COMELEC, for the Municipalities of Balindong and Taraka, Lanao del Sur used in the May 10, 2004 elections; [b] The Originals of the COMELEC COPIES of the Municipal Certicate of Canvass for the Municipalities of Balindong and Taraka, Lanao del Sur, and their accompanying Originals- Comelec copies of the STATEMENT OF VOTES BY PRECINCT for the same Municipalities of Balindong and Taraka, Lanao del Sur, used in the May 10, 2004 election; and [c] The Originals of the COMELEC COPIES of the Provincial CERTIFICATE OF CANVASS for the Province of Lanao Del Sur used by COMELEC in senatorial canvass for the May 10, 2004 elections, including their accompanying Originals of the COMELEC COPIES of the STATEMENT OF VOTES BY MUNICIPALITY for the Province of Lanao del Sur. You shall also testify on the various election documents above enumerated in respect to their printing, their genuineness and authenticity, and on the presence of SECURITY FEATURES contained, placed and/or embedded therein, should there be any. FAIL NOT UNDER PENALTY OF LAW. WITNESS the Honorable Bernardo P. Pardo, Ret. Associate Justice, this 13 th day of September 2006. (Sgd.) MA. LUISA D. VILLARAMA Clerk of the Tribunal 14 PET rollo, Vol. II, pp. 1777-1778. 15 PET rollo, Vol. II, pp. 1330-1335. 16 Id. at 1592-1600. 17 PET rollo, Vol. III, p. 2500. 18 Rules of the Presidential Electoral Tribunal (2005), Rule 33. RULE 33. Effect of failure to make cash deposit. - If a party fails to make the cash deposits or additional deposits herein required within the prescribed time limit, the Tribunal may dismiss the protest or counter-protest, or take such action as it may deem equitable under the circumstances. 19 PET rollo, Vol. III, pp. 2554-2555. 20 Id. at 2564-2576. 21 Id. at 2615-2618. 22 Rules of the Presidential Electoral Tribunal (2005), Rule 61. RULE 61. When submitted; contents. - Within twenty days from receipt of the Tribunal's ruling on the last offer of evidence by the protestee, the parties shall simultaneously submit their respective memoranda setting forth briefly: (a) The facts of the case; (b) A complete statement of all the arguments submitted in support of their respective views of the case; (c) Objections to the ballots adjudicated to or claimed by the other party in the revision of ballots; (d) Refutation of the objections of the other party to the ballots adjudicated to or claimed in the revision of ballots; (e) Objections to the tallying of election returns and certificates of canvass raised by the other party in the correction of manifest error; and (f) Refutation of the objections raised by the other party to the tallying of election returns and certificates of canvass in the correction of manifest error. All evidence, as well as objections to evidence presented by the other party, shall be either referred to or contained in the memorandum or in an appendix thereto. 23 PET rollo, Vol. III, pp. 2619-2620. 24 Id. at 2661-2684. 25 Id. at 2712-2733. 26 Id. at 2834-2844. 27 Id. at 2671-2673. 28 Id. 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 SEC. 19. Classes of documents.-For the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; x x x x 35 Municipal Board of Canvassers'. 36 P.E.T. Case No. 001, February 13, 1996, 253 SCRA 559. 37 PET rollo, Vol. III, pp. 2840-2844. 38 Saludo, Jr. v. American Express International, Inc., G.R. No. 159507, April 19, 2006, 487 SCRA 462, 483, held that courts are allowed to take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. 39 Supra note 36. 40 Id. at 574-575. 41 Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476. 42 TSN, November 6, 2006, pp. 89-96. 43 Rules of the Presidential Electoral Tribunal (2005), Rule 63. Dismissal; when proper. - The Tribunal may require the protestant or counter-protestant to indicate, within a fixed period, the province or provinces numbering not more than three, best exemplifying the frauds or irregularities alleged in his petition; and the revision of ballots and reception of evidence will begin with such provinces. If upon examination of such ballots and proof, and after making reasonable allowances, the Tribunal is convinced that, taking all circumstances into account, the protestant or counter-protestant will most probably fail to make out his case, the protest may forthwith be dismissed, without further consideration of the other provinces mentioned in the protest. The preceding paragraph shall also apply when the election protest involves correction of manifest errors. 44 Computed as follows: 881,722 + 1 = 440,862.
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. 135150 July 28, 1999 ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.
GONZAGA-REYES, J.: This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void.1wphi1.nt Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled: PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election. Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant. Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term. In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998. Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure. Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be heard and decided by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioner's assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections. The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local Government Code which bar a local government official from serving more than three consecutive terms in the same position speaks of "service of a term" and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks or "service of a term" which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification. The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioner's proclamation. The petition has merit. Sec. 8, Art. X of the Constitution provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials. The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty. 1 The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office. 2
The scope of the constitutional provision barring elective local officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr.; vs. COMELEC and Jose Capco, Jr. 3 where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the official's assumption of office is by reason of election. This Court stated: 4
Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved. It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress: MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before if the Gentlemen will remember-was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, this particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees' stand. xxx xxx xxx Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of "the-term of office of elective local officials" and bars "such officials" from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that "voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The term served must therefore be one "for which the official concerned was elected." The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve." This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated: To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term. The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. 6 Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside. The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election. The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad 7 that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits. Sec. 6 of RA 6646 specifically mandates that: Sec. 6. Effects of disqualification Case. any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed. The court stated: Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered thereon. The word "shall" signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R.A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails. Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court held Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation . Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.1wphi1.nt
SO ORDERED. Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., is on leave. Pardo, J., took no part.
Footnotes 1 Records, Constitutional Commission, July 25, 1986, pp. 236, 238. 2 Ibid., pp. 236, 243-244; August 16, 1986, pp. 407-408. 3 G.R. No. 133495, September 3, 1998. 4 Ibid., pp. 7-8. 5 Torres vs. COMELEC, G.R. No. 121031, March 26, 1997; Ramirez vs. COMELEC; G.R. No. 122013, March 26, 1997. 6 Ramas vs. COMELEC, G.R. No. 130831, February 10, 1998. 7 G.R. No. 125629, March 25, 1998, 288 SCRA 76.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 146710-15 March 2, 2001 JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. ---------------------------------------- G.R. No. 146738 March 2, 2001 JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent. PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six- year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords. 1
The expos" immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation. 2
The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the expos" of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner. 4 Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of resignation. 5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services 6 and later asked for petitioner's resignation. 7 However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry. 9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino. 10
The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment 11
signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentebella. 12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding. 13
The political temperature rose despite the cold December. On December 7, the impeachment trial started. 14 The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable- PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000. 15
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading. 16 Then came the fateful day of January 16, when by a vote of 11-10 17 the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President. 18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal. 19 Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion. 20
January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people. 21
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. 22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government." 23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement. 24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts. 25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelope. 26 There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez. 27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. 28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the following press statement: 30
"20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in to promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter: 31
"Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m. 33
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: "A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal- Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys. 34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo. 35 US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government. 36
On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives. 37 The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines." 38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal- Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution." 39
On January 26, the respondent signed into law the Solid Waste Management Act. 40
A few days later, she also signed into law the Political Advertising ban and Fair Election Practices Act. 41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. 42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr. 43 Senators Miriam Defensor- Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent. 44 The House of Representatives also approved Senator Guingona's nomination in Resolution No. 178. 45 Senator Guingona, Jr. took his oath as Vice President two (2) days later. 46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. 47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post. 48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class. 50
After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr. 51 and Associate Justice Artemio Panganiban 52 recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic." 53
The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I Whether or not the cases At bar involve a political question Private respondents 54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14 th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket, which the Court cannot enter. We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr, 56
viz: "x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'." In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question. 57 Our leading case is Tanada v. Cuenco, 58 where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. 60 With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x." Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. 61 and related cases 62 to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution 63 declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in deance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. 64 In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.1wphi1.nt In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the ofce of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non." 65
The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966. 66
Thence on, the guaranty was set in stone in our 1935 Constitution, 67 and the 1973 68
Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: "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 indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus." 69 In this sense, freedom of speech and of assembly provides a framework in which the "conict necessary to the progress of a society can take place without destroying the society." 70 In Hague v. Committee for Industrial Organization, 71 this function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all." 72 In the relatively recent case of Subayco v. Sandiganbayan, 73 this Court similar stressed that " it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers." Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II, 74 and section 8 75 of Article VII, and the allocation of governmental powers under section 11 76 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison, 77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark. II Whether or not the petitioner Resigned as President We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides: "Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice President shall have been elected and qualified. x x x." The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14 th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. 78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the expos" of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer. 79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)" 80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignied exit or resignation." 81 Petitioner did not disagree but listened intently. 82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family. 83 Signicantly, the petitioner expressed no objection to the suggestion for a graceful and dignied exit but said he would never leave the country. 84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the ve-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power." 86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The rst negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. 87 Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: "x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday. The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go." 88
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: "Opposition's deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled "Negotiating Points." It reads: '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice President to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police authority effective immediately. 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. '2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities Vice President (Macapagal). '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in "Annex A" heretofore attached to this agreement." 89
The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz; 90
"xxx 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement. The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. x x x The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. '3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority Vice President. '4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities. '5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore attached to this agreement. 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the agreement)?' I asked. Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?' And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).' Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provisions on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The President is too stunned for words: Final meal 12 noon Gloria takes her oath as president of the Republic of the Philippines. 12:20 p.m. The PSG distributes firearms to some people inside the compound. The president is having his final meal at the presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they can. During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving Malacaang. The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!"' It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: "Sir. By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting president. (Sgd.) Joseph Ejercito Estrada" To say the least, the above letter is wrapped in mystery. 91 The pleadings filed by the petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery." A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire." 92 During the period of amendments, the following provision was inserted as section 15: "Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency." 93
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President's immunity should extend after his tenure. Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right. 94 A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III Whether or not the petitioner Is only temporarily unable to Act as President. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of article VII." 95
This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now, the operative facts: 1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; 2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; 3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175; 96
On the same date, the House of the Representatives passed House Resolution No. 176 97 which states: "RESOLUTI ON EXPRESSI NG THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" On February 7, 2001, the House of the Representatives passed House Resolution No. 178 98 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" (4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the following: "RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolve cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82 100 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate
This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" On the same date, February 7, the Senate likewise passed Senate Resolution No. 83 101 which states: "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been terminated. Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13 th ) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.' (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v. Cuenco, 102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr, 103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional at. It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of powers. In ne, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. IV Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity Petitioner Estrada makes two submissions: rst, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Croseld, 104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, be acts, not as Governor- General but as a private individual, and as such must answer for the consequences of his act." Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself." 105
Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: "The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The Law of Privilege As a Defense To Actions For Damages," 106 petitioner's learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)." The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong." 107 The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis: 108
"Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I think the Commissioner for the clarifications." We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." 109
Since, the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz: 110
"xxx Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgement of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling In Re: Saturnino Bermudez 111 that 'incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan 112 and related cases 113 are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non- sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser. 114
Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon, 115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted co- conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones 117 where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. 118 It declared as a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruptio." 119 it ordained that "public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest lives." 120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, latches or estoppel." 121 It maintained the Sandiganbayan as an anti-graft court. 122 It created the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient." 123 The Office of the Ombudsman was also given fiscal autonomy. 124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. 126 The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases. 127 In People vs. Teehankee, Jr., 128 later reiterated in the case of Larranaga vs. court of Appeals, et al., 129 we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.' We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130 and its companion cases, viz: "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was xxx a. The historical evidence of the evolution of the criminal trial in Anglo- American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized when a shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof. 131 He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs." 132 News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner 133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman ows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors. 134 They can be reversed but they can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI. Epilogue A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms." 135 To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14 th President of the Republic are DISMISSED. SO ORDERED. Footnotes 1 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17. 2 PDI, October 6, 2000, pp. A1 and A18. 3 Ibid., October 12, 2000, pp. A1 and A17. 4 Ibid., October 14, 2000, p. A1. 5 Ibid., October 18, 2000, p. A1. 6 Ibid., October 13, 2000, pp. A1 and A21. 7 Ibid., October 26, 2000, p. A1. 8 Ibid., November 2, 2000, p. A1. 9 Ibid., November 3, 2000, p. A1. 10 Ibid., November 4, 2000, p. A1. 11 The complaint for impeachment was based on the following grounds: bribery, graft and corruption, betrayal of public trust, and culpable violation of the Constitution. 12 Ibid., November 14, 2000, p. A1. 13 Ibid., November 21, 2000, p. A1. 14 Ibid., December 8, 2000, p. A1. 15 Ibid., December 23, 2000, pp. A1 and A19. 16 Ibid., January 12, 2001, p. A1. 17 Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmea III. Those who vote "no" were Senators Ople, Defensor-Santiago, John Osmea, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III and Tatad. 18 Philippine Star, January 17, 2001, p. 1. 19 Ibid., January 18, 2001, p. 4. 20 Ibid., p. 1. 21 Ibid., January 19, 2001, pp. 1 and 8. 22 "Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"), PDI, February 4, 2001, p. A16. 23 Philippine Star, January 20, 2001, p. 4. 24 PDI, February 4, 2001, p. A16. 25 Philippine Star, January 20, 2001, pp. 1 and 11. 26 Ibid., January 20, 2001, p. 3. 27 PDI, February 5, 2001, pp. A1 and A6. 28 Philippine Star, January 21, 2001, p. 1. 29 PDI, February 6, 2001, p. A12. 30 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288. 31 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34. 32 Ibid. 33 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33. 34 Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI, January 25, 2001, pp. A1 and A15. 35 Philippine Star, January 24, 2001, p. 1. 36 PDI, January 25, 2001, p. 1. 37 Ibid., p. 2. 38 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290. 39 Annex D, id; ibid., p. 292. 40 PDI, January 27, 2001, p. 1. 41 PDI, February 13, 2001, p. A2. 42 Philippine Star, February 13, 2001, p. A2. 43 Annex E, id.; ibid., p. 295. 44 PDI, February 8, 2001, pp. A1 & A19. 45 Annex F, id.; ibid., p. 297. 46 PDI, February 10, 2001, p. A2. 47 Annex G, id.; ibid., p. 299. 48 PDI, February 8, 2001, p. A19. 49 Philippine Star, February 3, 2001, p. 4. 50 "Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16, 2001, p. 14. 51 See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos. 146710-15, pp. 525-527. 52 See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-125. 53 Rollo, G.R. No. 146738, p. 134. 54 Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos. 146710-15, Vol. III, pp. 809-820. 55 Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46. 56 369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962). 57 See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15 August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil 192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942). 58 103 Phil 1051, 1068 (1957). 59 Section 1, Article VIII, 1987 Constitution. 60 Note that the early treatises on Constitutional Law are discourses on limitations of power typical of which is, Cooley's Constitutional Limitations. 61 Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986. 62 Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992]. 63 Proclamation No. 3 (1986). 64 It states: I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the nation. So help me God. (Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332) 65 See "Filipinas Despues de Cien Aos" (The Philippines a Century Hence), p. 62. 66 The guaranty was taken from Amendment I of the US Constitution which provides: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance." 67 See section 8, Article IV. 68 See section 9, Article IV. 69 Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq. 70 Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-76) where he said " the greatest menace to freedom is an inert people " 71 307 US 496 (1939). 72 Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421. 73 260 SCRA 798 (1996). 74 Section 1, Article II of the 1987 Constitution reads: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." 75 Infra at 26. 76 Infra at 41. 77 1 Cranch (5 US) 137, 2 L ed 60 (1803). 78 Gonzales v. Hernandez, 2 SCRA 228 (1961). 79 See its February 4, 5, and 6, 2001 issues. 80 PDI, February 4, 2001, p. A1. 81 Ibid. 82 Ibid. 83 Ibid. 84 Ibid. 85 Ibid. 86 PDI, February 5, 2001, p. A1. 87 Ibid., p. A-1. 88 Ibid. 89 PDI, February 5, 2001, P. A6. 90 PDI, February 6, 2001, p. A1. 91 In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner would not sign the letter. 92 Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604. 93 Id., May 9, 1959, p. 1988 94 Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted." 95 Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV. 96 House Resolution No. 175, 11th Congress, 3rd Session (2001), reads: "RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the 14th President of the Philippines; WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of the people is the voice of God" establishes the basis of her mandate on integrity and morality in government; WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in fully supporting the President's strong determination to succeed; WHEREAS, the House of Representatives is likewise one with the people in supporting President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a divided nation in order to 'build an edifice of peace, progress and economic stability' for the country: Now, therefore, be it Resolved by the House of Representatives, To express its full support to the administration of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" 97 11th Congress, 3rd Session (2001). 98 11th Congress, 3rd Session (2001). 99 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231. 100 11th Congress, 3rd Session (2001). 101 11th Congress, 3rd Session (2001). 102 103 Phil 1051, 1067 (1957). 103 Baker vs. Carr, supra at 686 headnote 29. 104 16 Phil 534 (1910). 105 The logical basis for executive immunity from suit was originally founded upon the idea that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and governmental power resides in the throne. During that historical, juncture, it was believed that allowing the King to be sued in his courts was a contradiction to the sovereignty of the King. With the development of democratic thoughts and institutions, this kind of rationalization eventually lost its moral force. In the United States, for example, the common law maxim regarding the King's infallibility had limited reception among the framers of the Constitution. [J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential immunity found its way of surviving in modern political times, retaining both its relevance and vitality. The privilege, however, is now justified for different reasons. First, the doctrine is rooted in the constitutional tradition of separation of powers and supported by history. [Nixon v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as demanding the executive's independence from the judiciary, so that the President should not be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job that, aside from requiring all of the office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling litigation, disrespect upon his person will be generated, and distrust in the government will soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was recognized that the gains from discouraging official excesses might be more than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity, the president would be disinclined to exercise decision-making functions in a manner that might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)]. 106 62 Phil. L.J. 113 (1987). 107 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7. 108 Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986. 109 Supra at 47. 110 Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355. 111 145 SCRA 160 (1986). 112 128 SCRA 324 (1984). 113 In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988); and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995)., 114 Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967). 115 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974). 116 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982). 117 520 U.S. 681 (1997). 118 See section 1, Art. XI of the 1987 Constitution. 119 See section 27, Art. II of the 1987 Constitution. 120 See, section 1, Art. XI of the 1987 Constitution. 121 See section 15, Art. XI of the 1987 Constitution. 122 See section 4, Art. XI of the 1987 Constitution. 123 See section 13 (1), Art. XI of the 1987 Constitution. 124 See section 14, Art. XI of the 1987 Constitution. 125 See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000). 126 Id., p. 1417. 127 See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee, 249 SCRA 54 (1995) 128 249 SCRA 54 (1955) 129 287 SCRA 581 at pp. 596-597 (1998) 130 247 SCRA 652 (1995) 131 Extensive publicity did not result in the conviction of well known personalities. E.g., OJ Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos. 132 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573. 134 See section 4, Rule 112. 135 Estes v. Texas, 381 US 532, 540 (1965).
CONCURRING OPINION VITUG, J.: This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could have been one innocuous phenomenon buried in the pages of our history but for its critical dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is asked Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines? To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million Filipinos in the elections of May 1998, served well over two years until January 2001. Formally impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery, Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be removed from office and face prosecution with the regular courts or, if acquitted, he would remain in office. An evidence, however, presented by the prosecution tagged as the "second envelope" would have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola reportedly poised to storm Malacaang. In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but beleaguered by solitude-empty of the support by the military and the police, abandoned most of his cabinet members, and with hardly any firm succor from constituents. And despite the alleged popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster. With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo, then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read: "The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern the serve his unexpired term. Almost all of his cabinet members have resigned and the Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize him as President. "In view of this, I am assuming the position of the president of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the republic before the Honorable Chief Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City, Metro Manila. "May I have the honor to invite the members of the Honorable Court to attend the oath-taking." The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to keep its doors open, had to help assure that the judicial process was seen to be functioning. As the hours passed, however, the extremely volatile situation was getting more precarious by the minute, and the combustible ingredients were all but ready to ignite. The country was faced with a phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too limitless to be explicitly contained and constrained by the limited words and phrases of the constitution, directly sought to remove their president from office. On that morning of the 20th of January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court was left hardly with choice. Paradoxically, the first option would almost certainly imperil the Constitution, the second could save it. The confirmatory resolution was issued following the en banc session of the Court on 22 January 2001; it read: "A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the authority given by the twelve (12) members of the Court then present to the Chief justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal- Arroyo as President of the Philippines, at noon of January 20, 2001. "This resolution is without prejudice to the disposition of any justiceable case which may be filed by a proper party." At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet another "bloodless revolution." The Court could not have remained placid amidst the worsening situation at the time. It could not in conscience allow the high-strung emotions and passions of EDSA to reach the gates of Malacaang. The military and police defections created stigma that could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming. The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to prevent rather than cure an enigma incapable of being recoiled. The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was still President and that Mme. Macapagal-Arroyo took over only in an acting capacity. So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in case of death, permanent disability, removal from office, or resignation of the President,1secondly, when the President of the Senate and the Speaker of the House of representatives his written declaration that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the members of the cabinet transmit to the President and to the speaker of the House of representatives their written declaration that the President is unable to discharge the powers and duties of his office, 3 the latter two grounds being culled as the "disability." Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the above situations have occurred. The conditions for constitutional succession have not been met. He states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987 Constitution. The twin letters, dated 20 January 2001, to the two houses read: "By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be acting President." Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the case. The pressing issue must now catapult to its end. Resignation is an act of giving up or the act of an officer by which he renounces his office indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by an act of relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4 Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has not once been embodied in his letters or said in his statements. I am unable to oblige. The contemporary acts of Estrada during those four critical days of January are evident of his intention to relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled to discharge his duties, the embattled President acceded to have negotiations conducted for a smooth transition of power. The belated proposals of the President to have the impeachment Court allow the opening of the controversial envelope and to postpone his resignation until 24 January 2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the following letter --- "By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the vice-president shall be the acting president." Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the morning but the Senate president was said to have received a copy only on the evening of that day. Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and inutility in office not so much by the confluence of events that forces him to step down the seat of power in a poignant and teary farewell as the recognition of the will of the governed to whom he owned allegiance. In his "valedictory message," he wrote: "At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. "It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. "I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. "May the Almighty bless our country and our beloved people. "MABUHAY! Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office although not attending by the formalities normally observed in resignation. Abandonment may be effected by a positive act or can be the result of an omission, whether deliberate or not. 6 Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution. This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it were otherwise, when then would the disability last? Would it be when the confluent causes which have brought about that disability are completely set in reverse? Surely, the idea fails to register well to the simple mind. Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary government is one which has taken the seat of power by force or in defiance of the legal processes. Within the political context, a revolution is a complete overthrow of the established government.8 In its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The government structure has remained intact. Succession to the presidency has been by the duly-elected Vice-president of the Republic. The military and the police, down the line, have felt to be so acting in obedience to their mandate as the protector of the people. Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as being "a rapid, fundamental and violent domestic change in the dominant values and myths of society in its political institution, social structure, leadership, government activity and policies.11 " The distinguished A.J. Milne makes a differentiation between constitutional political action and a revolutionary political action. A constitutional political action, according to him, is a political within a legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary political action, on the other hand, acknowledges no such moral commitment. The latter is directly towards overthrowing the existing legal order and replacing it with something else.12 And what, one might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted rules, along with those in the Constitution13 and concerns itself with structures rather than personalities in the establishments. Accordingly, structure would prefer to the different branches of the government and personalities would be the power-holders. If determination would be made whether a specific legal order is intact or not, what can be vital is not the change in the personalities but a change in the structure. The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of the legal order. The constitutionally-established government structures, embracing various offices under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and still other entities, including the Armed Forces of the Philippines and the Philippine National Police and local governments as well, have all remained intact and functioning. An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore the basic tenet of constitutionalism and to functionalize the clearly preponderant facts. More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living testament and memorial of the sovereign will of the people from whom all government authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows and copes with the changing milieu. The framers of the constitution could not have anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in details, but enunciates the general tenets that are intended to apply to all facts that may come about but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent. The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an enduring instrument, its interpretation is not be confined to the conditions and outlook which prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot frustrate the inevitable because there is an immense difference between legalism and justice. If only to secure our democracy and to keep the social order technicalities must give away. It has been said that the real essence of justice does not emanate from quibblings over patchwork legal technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the ultimate development of social edifice.17 Anything else defeats the spirit and intent of the Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity. All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the revolutionary government that we know. The new government, now undoubtedly in effective control of the entire country, domestically and internationally recognized to be legitimate, acknowledging a previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting President, of the Republic of the Philippines. A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span of years between them, it might be said that popular mass action is fast becoming an institutionalized enterprise. Should the streets now be the venue for the exercise of popular democracy? Where does one draw the line between the rule of law and the rule of the mob, or between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting sands and might tragically open a Pandora's box more potent than the malaise it seeks to address. Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection on our part. In this kind of arena, let us be assumed that we are not overcome by senseless adventurism and opportunism. The country must not grow oblivious to the innate perils of people power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that which we may hold dear. 1 Section 8, Article VII, 1987 Constitution 2 Section 11, 1st paragraph, Article VII, 1987 Constitution 3 Ibid., 2nd paragraph 4 Ortiz vs. Comelec, 162 SCRA 812 5 Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998 6 Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition 7 "Mr. SUAREZ. xxx "May we now go to Section 11, page 5. This refers to the President's written declaration of inability to discharge the powers and duties of the Office of the President. Can this written declaration to be done for and in behalf of the President if, for example, the President is in no position to sign his name, like he suffers an accident and both his arms get to be amputated? "Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we borrowed this provision, but we feel that in remote situation that the Commissioner has cited in that the President cannot make a written declaration, I suppose an alternative would be considered wherein he can so expressly manifest in an authentic manner what should be contained in a written declaration. xxx "Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really, the physical disability of the gentleman was never made clear to the historians. But suppose a situation will happen in our country where the President may suffer coma and gets to be unconscious, which is practically a total inability to discharge the powers and duties of his office, how can he submit a written declaration of inability to perform the duties and functions of his office? "x x x x x x x x x "FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation. "Mr. SUAREZ. I see. "Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they have had situations in the United States, including those of President Garfield, President Wilson, President Roosevelt and President Eisenhower." (11 RECORDS, PP. 421-423) 8 Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086 9 Ibid. 10 Ibid. 11 Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE QUARTERLY 12 Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453, 456 (1973) 13 Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines Law Journal, 390-391 (1971) 14 16 American Jurisprudence 2d. 15 State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252 16 John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763 17 Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104 18 Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No. 73748, May 22, 1986. CONCURRING OPINION MENDOZA, J.: In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo. In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is merely acting President on account o the former's temporary disability. On the other hand, in G.R. Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from investigating charges of plunder, bribery, malversation of public funds, and graft and corruption against petitioner Estrada on the theory that, being still President, he is immune from suit. In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo contends that the matter is not justiciable because of "the virtual impossibility of undoing what has been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In support of this contention, respondent cites the following statements of this Court concerning the Aquino government which it is alleged applies to her administration: . . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but is in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government.2 From the natural law point of view, the right of revolution has been defined as "an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable." It has been said that "the locus of positive law-making power lies with the people of the state" and from there is derived" the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution."3 But the Aquino government was a revolutionary government which was established following the overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm the existence and authority of such government under which it is exercising judicial power.4 As Melville Weston long ago put it, "the men who were judges under the old regime and the men who are called to be judges under the new have each to decide as individuals what they are to do; and it may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973 Constitution was political and affirmed that it was itself part of the new government. As the Court said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in the day to deny the force and applicability of the 1973 Constitution." In contrast, these cases do not involve the legitimacy of a government. They only involve the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the Constitution.9 Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk about the fact that it was brought about by succession due to resignation or permanent disability of petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest for power Macapagal-Arroyo's government is the successful one and is now accepted by the people and recognized by the community of nations. But that is not the case here. There was no revolution such as that which took place in February 1986. There was no overthrow of the existing legal order and its replacement by a new one, no nullification of the Constitution. What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that case, in order to prevent Senator Lorenzo M. Taada from airing charges against Senate President Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session and, followed by six senators, walked out of the session hall. The remaining senators then declared the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting president. The question was whether respondent Cuenco had been validly elected acting president of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital. Although in the beginning this Court refused to take cognizance of a petition for quo warranto brought to determine the rightful president of the Senate, among other things, in view of the political nature of the controversy, involving as it did an internal affair of a coequal branch of the government, in the end this Court decided to intervene because of the national crisis which developed as a result of the unresolved question of presidency of the Senate. The situation justifying judicial intervention was described, thus: We can take judicial notice that legislative work has been at a standstill; the normal and ordinary functioning of the Senate has been hampered by the non-attendance to sessions of about one-half of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent persons with well-known addresses and residences and have been in daily contact with news reporters and photographers. Farce and mockery have been interspersed with actions and movements provoking conflicts which invite bloodshed. . . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is highly explosive. It had echoed in the House of Representatives. It has already involved the President of the Philippines. The situation has created a veritable national crisis, and it is apparent that solution cannot be expected from any quarter other than this Supreme Court, upon which the hopes of the people for an effective settlement are pinned.11 In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but to meet the challenge of the situation which demands the utmost of judicial temper and judicial statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-Arroyo's presidency similarly justify, in my view, judicial intervention in these cases. Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that there is nothing else that can be done about the assumption into office of respondent Gloria Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which, once squeezed out of the tube, cannot be put back. Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the tube. Literally, it can be put back by opening the bottom of the tube that is how toothpaste is put in tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R. No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of law. In election cases, people accept the decisions of courts even if they be against the results as proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as far as the political question argument of respondents is anchored on the difficulty or impossibility of devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the Macapagal-Arroyo administration. This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the Presidency was in accordance with the Constitution. Art. VII. 8 provides in pertinent parts: In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The events that led to the departure of petitioner Joseph E. Estrada from office are well known and need not be recounted in great detail here. They began in October 2000 when allegations of wrong doings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000, petitioner was impeached by the House of Representatives and, on December 7, impeachment proceedings were begun in the Senate during which more serious allegations of graft and corruption against petitioner were made and were only stopped on January 16, 2001 when 11 senators, sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out and Senate President Aquilino Pimentel resigned after casting his vote against petitioner. The events, as seen through the eyes of foreign correspondents, are vividly recounted in the following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the Memorandum of petitioner in G.R. Nos. 146710-15, thus: 1. The decision immediately sent hundreds of Filipinos out into the streets, triggering rallies that swelled into a massive four-day demonstration. But while anger was apparent among the middle classes, Estrada, a master of the common touch, still retained largely passive support among the poorest Filipinos. Citing that mandate and exploiting the letter of the Constitution, which stipulates that a written resignation be presented, he refused to step down even after all of the armed forced, the police and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC REVIEW, "More Power to The Powerful", id, at p. 18]. 2. When an entire night passed without Estrada's resignation, tens of thousands of frustrated protesters marched on Malacaang to demand that the president leave office. An air force fighter jet and four military helicopters buzzed the palace to remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC REVIEW, supra, ibid]. 3. While the television cameras were focused on the rallies and the commentators became lost in reveries about People Power revisited behind-the-scenes negotiations had been going on non-stop between military factions loyal to Estrada and those who advocated a quick coup to depose the President. Chief of Staff Reyes and Defense Secretary Mercado had made their fateful call to Estrada after luncheon attended by all the top commanders. The officers agreed that renouncing Estrada was the best course, in part because some commanders were urging more drastic resolution. If the military did not come to a consensus, there loomed the possibility of factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18] 4. It finally took a controversial Supreme Court declaration that the presidency was effectively vacant to persuade Estrada to pack up and move out to his family home in Manila still refusing to sign a letter of resignation and insisting that he was the legal president [FAR EASTERN ECONOMIC REVIEW, "More Power to the Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President and the other to the Speaker of the House, indicating that he was unable to perform the duties of his Office.13 To recall these events is to note the moral framework in which petitioner's fall from power took place. Petitioner's counsel claimed petitioner was forced out of Malacaang Palace, seat of the Presidency, because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem? This can only happen because he had lost his moral authority as the elected President. Indeed, the people power movement did not just happen at the call of some ambitious politicians, military men, businessmen and/or prelates. It came about because the people, rightly or wrongly, believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were all televised and heard by millions of people throughout the length and breadth of this archipelago. As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members resigned, members of the Armed Forces of the Philippines and the Philippine National Police withdrew their support of the President, while civil society announced its loss of trust and confidence in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained President only in name. Having lost the command of the armed forces and the national police, he found Himself vulnerable to threats of mayhem. This is the confession of one who is beaten. After all, the permanent disability referred to in the Constitution can be physical, mental or moral, rendering the President unable to exercise the powers and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's presidency: The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)15 Angara himself shared this view of petitioner's inability. He wrote in his diary: "Let us be realistic," I counter. "The President does not have the capability to organize a counter-attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a corner he is also down." 16
This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M. of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled but only temporarily unable to discharge the powers and duties of his office and therefore can only be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, 11. From this judgment that petitioner became permanently disabled because he had lost the public's trust, I except extravagant claims of the right of the people to change their government. While Art. II, 1 of the Constitution says that "sovereignty resides in the people and all government authority emanates from them," it also says that "the Philippines is a democratic and republican state." This means that ours is a representative democracy as distinguished from a direct democracy in which the sovereign will of the people is expressed through the ballot, whether in an election, referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of sovereignty in any other way is unconstitutional. Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. 17
Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a revolution but the peaceful expression of popular will. The operative fact which enabled Vice-President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis, nay a vacuum, in the executive leadership which made the government rife for seizure by lawless elements. The presidency was up for grabs, and it was imperative that the rule of succession in the Constitution be enforced. But who is to declare the President's permanent disability, petitioner asks? The answer was given by petitioner himself when he said that he was already tired and wanted no more of popular demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own Executive Secretary declared that petitioner was not only in a corner but was down. Nor is it correct for petitioner to say that the present situation is similar to our situation during the period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents, namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The Philippines had two presidents at that time for the simple reason that there were then two governments the de facto government established by Japan as belligerent occupant, of which Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L. Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a recognized principle of international law.18 But today we have only one government, and it is the one set up in the 1987 Constitution. Hence, there can only be one President. Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of adjudication that the Court should not formulate a rule of constitutional law broader than is required by the precise facts to which it is applied. The only question left for resolution is whether there was massive prejudicial publicity attending the investigation by the Ombudsman of the criminal charges against petitioner. The test in this jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner as a result of publicity. There has been no proof of this, and so I think this claim should simply be dismissed. For the foregoing reasons, I vote to dismiss the petitions in these cases. (Sgd.) VICENTE V. MENDOZA Associate Justice Footnotes 1 Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15. 2 Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746, May 22, 1986. 3 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992). 4 Luther v. Borden, 7 How. 1 (1848). 5 Political Questions, 38 Harv. L. Rev. 296, 305 (1925). 6 50 SCRA 30 (1973). 7 104 SCRA ! (1981). 8 104 SCRA 59 (1981). 9 Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2. 10 83 Phil. 17 (1949). 11 83 Phil. At 76 (Perfecto, J., concurring). 12 Id. at 25-26 (concurring and dissenting). 13 Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6. 14 Petition, G.R. No. 146738, p. 13. 15 Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6, 2001. 16 Id. (emphasis added). 17 Emphasis added. 18 Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285 (1945); Laurel v. Misa, 77 Phil. 856 (1947). 19 See Martelino v. Alejandro, 32 SCRA 106 (1970).
Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991 ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents. Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896. Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are: Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman. Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary position. Sec. 3. In order to fully protect the interest of the government in government- owned or controlled corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary. Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No. 83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions. Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex- officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers one, the President and her official family, and the other, public servants in general allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides: Sec. 7. . . . . . Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government- owned or controlled corporations or their subsidiaries. The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the first official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive executive official to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned (disparate positions). In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice- President, Members of the Cabinet and their deputies or assistants. There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein are concerned. The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries." We rule in the negative. A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the present time. This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly denounced on the floor of the Batasang Pambansa. 12 This condemnation came in reaction to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of Government- Owned and Controlled Corporations as of December 31, 1983." Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be discontinued. But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX- B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government." It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure. Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice- President to become a member of the Cabinet, 15 and to act as President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII. It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. 17
Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." 27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board. If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries. Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully executed. 35 Without these additional duties and functions being assigned to the President and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an unwieldy and confused bureaucracy. It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of his position," 36 express reference to certain high-ranking appointive public officials like members of the Cabinet were made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when although not required by current law, membership of certain high- ranking executive officials in other offices and corporations is necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par. (2) of Article I- XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ." What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission. That this exception would in the final analysis apply also to the President and his official family is by reason of the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary functions may be considered as not constituting "any other office." While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof. In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the positions complained of. During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered. 46 It has been held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. 47 Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur. Sarmiento and Grio-Aquino, JJ., took no part.
Footnotes 1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896. 2 Emphasis supplied. 3 pp. 29-30, Rollo. 4 pp. 10-21, Rollo. 5 Annex "A", Petition, G.R. No. 83815, pp. 21-24, Rollo. 6 Thereby, petitioner alleges, eliciting adverse published commentaries from CONCOM Commissioners Fr. Joaquin G. Bernas, S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of Isabela, and retired Supreme Court Justice Felix Q. Antonio, Annexes "D", "E" and "F", Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM Vice-President Ambrosio B. Padilla, in a published article cited in the annexes, also commented on EO 284. 7 p. 11, Rollo in G.R. No. 83815. 8 Emphasis supplied. 9 Annex "I", Comment, G.R. No. 83896, pp. 62-67, Rollo. 10 Annex "2", Ibid., pp. 68-71, Rollo. 11 Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 44 L. Ed. 597. 12 R.B. No. 95, Monday, March 11, 1985, Record of the Batasan, Volume IV, pp. 835-836. 13 pp. 11-14. 14 Record of the 1986 Constitutional Commission, Vol. 1, p. 553. 15 Sec. 3, Ibid. 16 Sec. 7, Article VII. 17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241 P. 879. 18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith, 308 Ky 73, 212 SW 2d 521. 19 People vs. Wright, 6 Col. 92. 20 Thomas M. Colley, A Treatise on the Constitutional Limitations, Vol. I, p. 128, citing Attorney-General vs. Detroit and Erin Plank Road Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262. 21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex. App. 396, 3 S.W. 233. 22 As opposed to the term "allowed" used in Section 7, par. (2), Article IX-B of the Constitution, which is permissive. "Required" suggests an imposition, and therefore, obligatory in nature. 23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R. 407. 24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117. 25 Sec. 20, Art. XII, 1987 Constitution. 26 Hirabayashi vs. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of Wage and Hour Div., 312 U.S. 126, 85 L. Ed. 624, 61 S. Ct. 524; Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited in 16 Am Jur 2d, pp. 100, 464. 27 Black's Law Dictionary, p. 516; 15A Words and Phrases, p. 392. 28 15A Words and Phrases, p. 392. 29 Sec. 7, E.O. 778. 30 Sec. 1, E.O. 210. 31 21 SCRA 336 (1967). 32 Emphasis supplied. 33 33A Words and Phrases, p. 210, citing Collector of Revenue vs. Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145. 34 Sec. 7, P.D. No. 474. 35 Section 17, Article VII. 36 The phrase that appears in the Constitution is not "Unless required by the primary functions" but "Unless otherwise allowed by law or by the primary functions . . ." 37 Record of the 1986 Constitutional Commission, Vol. V, pp. 165-166. 38 Emphasis supplied, Ibid., p. 165. 39 Ibid., Vol. V., pp. 80-81. 40 Ibid., Vol. II, p, 94. 41 Ibid., Vol. III, p. 710. 42 16 Corpus Juris Secundum, 2. 31, p. 105. 43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220. 44 Household Finance Corporation vs. Shaffner, 203, S.W. 2d 734. 356 Mo. 808. 45 Now Department of Interior and Local Governments. 46 Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61 SCRA 55. 47 Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 184740 February 11, 2010 DENNIS A. B. FUNA, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Ofce of the President, SEC. LEANDRO R. MENDOZA, in his ofcial capacity as Secretary of the Department of Transportation and Communications, USEC. MARIA ELENA H. BAUTISTA, in her ofcial capacities as Undersecretary of the Department of Transportation and Communications and as Ofcer-in-Charge of the Maritime Industry Authority (MARINA), Respondents. D E C I S I O N VILLARAMA, JR., J.: This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA). The Antecedents On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department under Special Order No. 2006-171 dated October 23, 2006. 1
On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary. 2
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment. On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA vice Vicente T. Suazo, Jr. 3 and she assumed her duties and responsibilities as such on February 2, 2009. 4
The Case Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court in Civil Liberties Union v. Executive Secretary, 5 and reiterated in Public Interest Center, Inc. v. Elma. 6
He points out that while it was clarified in Civil Liberties Union that the prohibition does not apply to those positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC Undersecretary, as can be gleaned from the provisions of its charter, Presidential Decree (P.D.) No. 474, 7 as amended by Executive Order (EO) No. 125-A. 8 Moreover, the provisions on the DOTC in the Administrative Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex-officio role for the undersecretaries in any of the departments attached agencies. The fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she does not occupy it in an ex-officio capacity since an ex-officio position does not require any "further warrant or appoint." 9
Petitioner further contends that even if Bautistas appointment or designation as OIC of MARINA was intended to be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the rationale in Achacoso v. Macaraig. 10 Section 13, Article VII of the 1987 Constitution does not enumerate temporariness as one (1) of the exceptions thereto. And since a temporary designation does not have a maximum duration, it can go on for months or years. In effect, the temporary appointment/designation can effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to occupy other government posts would open a Pandoras Box as to let them feast on choice government positions. Thus, in case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would be the logical course, the said officers being in a better position in terms of knowledge and experience to run the agency in a temporary capacity. Should none of them merit the Presidents confidence, then the practical remedy would be for Undersecretary Bautista to first resign as Undersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact does not receive or has waived any remuneration, the same does not matter because remuneration is not an element in determining whether there has been a violation of Section 13, Article VII of the 1987 Constitution. 11
Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA Administrator. The reason is that with respect to the affairs in the maritime industry, the recommendations of the MARINA may be the subject of counter or opposing recommendations from the Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary for Maritime Transport and the OIC of MARINA have become one (1) and the same person. There is no more checking and counter-checking of powers and functions, and therein lies the danger to the maritime industry. There is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency because the person who should be overseeing MARINA, the Undersecretary for Maritime Transport, has effectively been compromised. 12
Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can be rendered moot through the expediency of simply revoking the temporary appointment/designation. But since a similar violation can be committed in the future, there exists a possibility of "evading review," and hence supervening events should not prevent the Court from deciding cases involving grave violation of the 1987 Constitution, as this Court ruled in Public Interest Center. Notwithstanding its mootness therefore, should it occur, there is a compelling reason for this case to be decided: the issue raised being "capable of repetition, yet evading review." 13
On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioners prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is nothing left to enjoin. 14
Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from the standard set in Public Interest Center is the requirement that the party suing as a taxpayer must prove that he has sufficient interest in preventing illegal expenditure of public funds, and more particularly, his personal and substantial interest in the case. Petitioner, however, has not alleged any personal or substantial interest in this case. Neither has he claimed that public funds were actually disbursed in connection with respondent Bautistas designation as MARINA OIC. It is to be noted that respondent Bautista did not receive any salary while she was MARINA OIC. As to the alleged transcendental importance of an issue, this should not automatically confer legal standing on a party. 15
Assuming for the sake of argument that the legal question raised herein needs to be resolved, respondents submit that the petition should still be dismissed for being unmeritorious considering that Bautistas concurrent designation as MARINA OIC and DOTC Undersecretary was constitutional. There was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA Administrator was left vacant, and pending the appointment of permanent Administrator, respondent Bautista was designated OIC in a temporary capacity for the purpose of preventing a hiatus in the discharge of official functions. Her case thus falls under the recognized exceptions to the rule against multiple offices, i.e., without additional compensation (she did not receive any emolument as MARINA OIC) and as required by the primary functions of the office. Besides, Bautista held the position for four (4) months only, as in fact when she was appointed MARINA Administrator on February 2, 2009, she relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of the proscription on the holding of multiple offices. 16
As to petitioners argument that the DOTC Undersecretary for Maritime Transport and MARINA Administrator are incompatible offices, respondents cite the test laid down in People v. Green, 17 which held that "[T]he offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are compatible at common law." Thus, respondents point out that any recommendation by the MARINA Administrator concerning issues of policy and administration go to the MARINA Board and not the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is, in turn, under the direct supervision of the DOTC Secretary. Petitioners fear that there is no longer a person above the Administrator of MARINA who will be reviewing the acts of said agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded. 18
In his Reply, petitioner contends that respondents argument on the incompatibility of positions was made on the mere assumption that the positions of DOTC Undersecretary for Maritime Transport and the administratorship of MARINA are "closely related" and is governed by Section 7, paragraph 2, Article IX-B of the 1987 Constitution rather than by Section 13, Article VII. In other words, it was a mere secondary argument. The fact remains that, incompatible or not, Section 13, Article VII still does not allow the herein challenged designation. 19
The sole issue to be resolved is whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants. Our Ruling The petition is meritorious. Requisites for Judicial Review The courts power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations, namely: (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; 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 possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. 20 Respondents assert that the second requisite is absent in this case. Generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action. 21 The question on standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." 22
In David v. Macapagal-Arroyo, 23 summarizing the rules culled from jurisprudence, we held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. [EMPHASIS SUPPLIED.] Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal act by public officials. The other objection raised by the respondent is that the resolution of this case had been overtaken by events considering the effectivity of respondent Bautistas appointment as MARINA Administrator effective February 2, 2009 and her relinquishment of her former position as DOTC Undersecretary for Maritime Transport. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. 24 However, as we held in Public Interest Center, Inc. v. Elma, 25
supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public. 26
As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review. 27 In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the Presidents appointment or designation of a Department Undersecretary as officer-in- charge of an attached agency will arise in every such appointment. 28
Undersecretary Bautistas designation as MARINA OIC falls under the stricter prohibition under Section 13, Article VII of the 1987 Constitution. Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. On the other hand, Section 7, paragraph (2), Article IX-B reads: Sec. 7. x x x Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987, which included Members of the Cabinet, undersecretaries and assistant secretaries in its provisions limiting to two (2) the positions that appointive officials of the Executive Department may hold in government and government corporations. Interpreting the above provisions in the light of the history and times and the conditions and circumstances under which the Constitution was framed, this Court struck down as unconstitutional said executive issuance, saying that it actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. Noting that the prohibition imposed on the President and his official family is all- embracing, the disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus: These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more checks and restraints on them are called for because there is more possibility of abuse in their case." Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants. x x x x Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. 29 [EMPHASIS SUPPLIED.] Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials specified therein, without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 30 Apart from their bare assertion that respondent Bautista did not receive any compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in an ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary for Maritime Transport. MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos on June 1, 1974. It is mandated to undertake the following: (a) Adopt and implement a practicable and coordinated Maritime Industry Development Program which shall include, among others, the early replacement of obsolescent and uneconomic vessels; modernization and expansion of the Philippine merchant fleet, enhancement of domestic capability for shipbuilding, repair and maintenance; and the development of reservoir of trained manpower; (b) Provide and help provide the necessary; (i) financial assistance to the industry through public and private financing institutions and instrumentalities; (ii) technological assistance; and (iii) in general, a favorable climate for expansion of domestic and foreign investments in shipping enterprises; and (c) Provide for the effective supervision, regulation and rationalization of the organizational management, ownership and operations of all water transport utilities, and other maritime enterprises. 31
The management of MARINA is vested in the Maritime Administrator, who shall be directly assisted by the Deputy Administrator for Planning and a Deputy Administrator for Operations, who shall be appointed by the President for a term of six (6) years. The law likewise prescribes the qualifications for the office, including such "adequate training and experience in economics, technology, finance, law, management, public utility, or in other phases or aspects of the maritime industry," and he or she is entitled to receive a fixed annual salary. 32 The Administrator shall be directly responsible to the Maritime Industry Board, MARINAs governing body, and shall have powers, functions and duties as provided in P.D. No. 474, which provides, under Sections 11 and 12, for his or her general and specific functions, respectively, as follows: Sec. 11. General Powers and Functions of the Administrator. Subject to the general supervision and control of the Board, the Administrators shall have the following general powers, functions and duties; a. To implement, enforce and apply the policies, programs, standards, guidelines, procedures, decisions and rules and regulations issued, prescribed or adopted by the Board pursuant to this Decree; b. To undertake researches, studies, investigations and other activities and projects, on his own initiative or upon instructions of the Board, and to submit comprehensive reports and appropriate recommendations to the Board for its information and action; c. To undertake studies to determine present and future requirements for port development including navigational aids, and improvement of waterways and navigable waters in consultation with appropriate agencies; d. To pursue continuing research and developmental programs on expansion and modernization of the merchant fleet and supporting facilities taking into consideration the needs of the domestic trade and the need of regional economic cooperation schemes; and e. To manage the affairs of the Authority subject to the provisions of this Decree and applicable laws, orders, rules and regulations of other appropriate government entities. Sec. 12. Specific Powers and Functions of the Administrator. In addition to his general powers and functions, the Administrator shall; a. Issue Certificate of Philippine Registry for all vessels being used in Philippine waters, including fishing vessels covered by Presidential Decree No. 43 except transient civilian vessels of foreign registry, vessels owned and/or operated by the Armed Forces of the Philippines or by foreign governments for military purposes, and bancas, sailboats and other watercraft which are not motorized, of less than three gross tons; b. Provide a system of assisting various officers, professionals, technicians, skilled workers and seamen to be gainfully employed in shipping enterprises, priority being given to domestic needs; c. In collaboration and coordination with the Department of Labor, to look into, and promote improvements in the working conditions and terms of employment of the officers and crew of vessels of Philippine registry, and of such officers and crew members who are Philippine citizens and employed by foreign flag vessels, as well as of personnel of other shipping enterprises, and to assist in the settlement of disputes between the shipowners and ship operators and such officers and crew members and between the owner or manager of other shipping enterprises and their personnel; d. To require any public water transport utility or Philippine flag vessels to provide shipping services to any coastal areas in the country where such services are necessary for the development of the area, to meet emergency sealift requirements, or when public interest so requires; e. Investigate by itself or with the assistance of other appropriate government agencies or officials, or experts from the private sector, any matter within its jurisdiction, except marine casualties or accidents which shall be undertaken by the Philippine Coast Guard; f. Impose, fix, collect and receive in accordance with the schedules approved by the Board, from any shipping enterprise or other persons concerned, such fees and other charges for the payment of its services; g. Inspect, at least annually, the facilities of port and cargo operators and recommend measures for adherence to prescribed standards of safety, quality and operations; h. Approve the sale, lease or transfer of management of vessels owned by Philippine Nationals to foreign owned or controlled enterprises; i. Prescribe and enforce rules and regulations for the prevention of marine pollution in bays, harbors and other navigable waters of the Philippines, in coordination with the government authorities concerned; j. Establish and maintain, in coordination with the appropriate government offices and agencies, a system of regularly and promptly producing, collating, analyzing and disseminating traffic flows, port operations, marine insurance services and other information on maritime matters; k. Recommend such measures as may be necessary for the regulation of the importation into and exportation from the Philippines of vessels, their equipment and spare parts; l. Implement the rules and regulations issued by the Board of Transportation; m. Compile and codify all maritime laws, orders, rules and regulations, decisions in leasing cases of courts and the Authoritys procedures and other requirements relative to shipping and other shipping enterprises, make them available to the public, and, whenever practicable to publish such materials; n. Delegate his powers in writing to either of the Deputy Administrators or any other ranking officials of the Authority; Provided, That he informs the Board of such delegation promptly; and o. Perform such other duties as the Board may assign, and such acts as may be necessary and proper to implement this Decree. With the creation of the Ministry (now Department) of Transportation and Communications by virtue of EO No. 546, MARINA was attached to the DOTC for policy and program coordination on July 23, 1979. Its regulatory function was likewise increased with the issuance of EO No. 1011 which abolished the Board of Transportation and transferred the quasi-judicial functions pertaining to water transportation to MARINA. On January 30, 1987, EO No. 125 (amended by EO No. 125-A) was issued reorganizing the DOTC. The powers and functions of the department and the agencies under its umbrella were defined, further increasing the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise known as the "The Domestic Shipping Development Act of 2004," 33 further strengthened MARINAs regulatory powers and functions in the shipping sector. Given the vast responsibilities and scope of administration of the Authority, we are hardly persuaded by respondents submission that respondent Bautistas designation as OIC of MARINA was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for Maritime Transport is not even a member of the Maritime Industry Board, which includes the DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following as members: Executive Secretary (Office of the President), Philippine Ports Authority General Manager, Department of National Defense Secretary, Development Bank of the Philippines General Manager, and the Department of Trade and Industry Secretary. 34
Finally, the Court similarly finds respondents theory that being just a "designation," and temporary at that, respondent Bautista was never really "appointed" as OIC Administrator of MARINA, untenable. In Binamira v. Garrucho, Jr., 35 we distinguished between the terms appointment and designation, as follows: Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in nature. Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named. 36 [emphasis supplied.] Clearly, respondents reliance on the foregoing definitions is misplaced considering that the above-cited case addressed the issue of whether petitioner therein acquired valid title to the disputed position and so had the right to security of tenure. It must be stressed though that while the designation was in the nature of an acting and temporary capacity, the words "hold the office" were employed. Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature of the appointment or designation, words which were not even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To "hold" an office means to "possess or occupy" the same, or "to be in possession and administration," 37 which implies nothing less than the actual discharge of the functions and duties of the office.1avvphi1 The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration of powers in the Executive Department officials, specifically the President, Vice-President, Members of the Cabinet and their deputies and assistants. Civil Liberties Union traced the history of the times and the conditions under which the Constitution was framed, and construed the Constitution consistent with the object sought to be accomplished by adoption of such provision, and the evils sought to be avoided or remedied. We recalled the practice, during the Marcos regime, of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities, including government-owned or controlled corporations. This practice of holding multiple offices or positions in the government led to abuses by unscrupulous public officials, who took advantage of this scheme for purposes of self-enrichment. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission would draft into the proposed Constitution the provisions under consideration, which were envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. 38 Our declaration in that case cannot be more explicit: But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. 39
[emphasis supplied.] Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the semantics of respondents. It would open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the Executive Department and of limitations on the Presidents power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations. As to respondents contention that the concurrent positions of DOTC Undersecretary for Maritime Transport and MARINA OIC Administrator are not incompatible offices, we find no necessity for delving into this matter. Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG Chairman Magdangal Elma in Public Interest Center, Inc. v. Elma. 40 Therein we held that Section 13, Article VII is not applicable to the PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary or assistant secretary. 41
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID. No costs. SO ORDERED. MARTIN S. VILLARAMA, JR. Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice ANTONIO T. CARPIO Associate Justice (No Part) RENATO C. CORONA *
Associate Justice CONCHITA CARPIO MORALES Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice ARTURO D. BRION Associate Justice DIOSDADO M. PERALTA Associate Justice LUCAS P. BERSAMIN Associate Justice MARIANO C. DEL CASTILLO Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice JOSE CATRAL MENDOZA Associate Justice C E R T I F I C A T I O N Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice Footnotes * No Part. 1 Rollo, pp. 99 and 101. 2 Id. at 100. 3 Id. at 102. 4 Id. at 103-104. 5 G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317. 6 G.R. No. 138965, June 30, 2006, 494 SCRA 53. 7 PROVIDING FOR THE REORGANIZATION OF MARITIME FUNCTIONS IN THE PHILIPPINES, CREATING THE MARITIME INDUSTRY AUTHORITY, AND FOR OTHER PURPOSES, approved on June 1, 1974. 8 Approved on April 13, 1987. 9 Rollo, pp. 14-27. 10 G.R. No. 93023, March 13, 1991, 195 SCRA 235. 11 Rollo, pp. 34-37. 12 Id. at 38-40. 13 Id. at 40-42. 14 Id. at 86-87. 15 Id. at 88-89. 16 Id. at 90-93. 17 13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.). 18 Id. at 93-95. 19 Id. at 127-128. 20 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., G.R. Nos. 160261-160263, 160277, 160292, 160295, 160310, 160318, 160342, 160343, 160360, 160365, 160370, 160376, 160392, 160397, 160403 and 160405, November 10, 2003, 415 SCRA 44, 133 citing Angara v. Electoral Commission, 63 Phil. 139 (1936). 21 Tolentino v. COMELEC, 465 Phil. 385, 402 (2004). 22 Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 (1962). 23 G.R. No. 171396 and six (6) other cases, May 3, 2006, 489 SCRA 160, 220-221. 24 David v. Macapagal-Arroyo, supra at 213-214, citing Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129, Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91; Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756. 25 G.R. No. 138965, June 30, 2006, 494 SCRA 53. 26 Id. at 58, citing Province of Batangas v. Romulo, supra at 757 and Chavez v. Public Estates Authority, 433 Phil. 506, 522 (2002). 27 Pimentel, Jr. v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587, 593, citing Tolentino v. Commission on Elections, G.R. No. 148334, January 21, 2004, 420 SCRA 438, Gil v. Benipayo, G.R. No. 148179, June 26, 2001 (Unsigned Resolution), Chief Supt. Acop v. Secretary Guingona, Jr., 433 Phil. 62 (2002), Viola v. Hon. Alunan III, 343 Phil. 184 (1997) and Alunan III v. Mirasol, 342 Phil. 467 (1997). 28 Id. at 593. 29 Civil Liberties Union v. Executive Secretary, supra at 328-329, 331. 30 Id. at 331-332. 31 P.D. No. 474, Sec. 2. 32 Id., Secs. 8 and 9. 33 AN ACT PROMOTING THE DEVELOPMENT OF PHILIPPINE DOMESTIC SHIPPING, SHIPBUILDING, SHIP REPAIR AND SHIP BREAKING, ORDAINING REFORMS IN GOVERNMENT POLICIES TOWARDS SHIPPING IN THE PHILIPPINES, AND FOR OTHER PURPOSES, approved on May 3, 2004. 34 Reference: 2006 MARINA Annual Report, sourced from the Internet at http:// www. ma r i n a . gov. ph / s e r v i c e s / r e s u l t s . a s px ? k =MARI NA%2 0 a n n u a l %20report&start1=1>. 35 G.R. No. 92008, July 30, 1990, 188 SCRA 154. 36 Id. at 158-159. 37 BLACKS LAW DICTIONARY, Eighth Edition, p. 749. 38 Civil Liberties Union v. Executive Secretary, supra at 326-327. 39 Id. at 327. 40 Supra note 6. 41 Id. at 62.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169777 * April 20, 2006 SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents. x-------------------------x G.R. No. 169659 April 20, 2006 BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, Respondent. x-------------------------x G.R. No. 169660 April 20, 2006 FRANCISCO I. CHAVEZ, Petitioner, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents. x-------------------------x G.R. No. 169667 April 20, 2006 ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs. HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent. x-------------------------x G.R. No. 169834 April 20, 2006 PDP- LABAN, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent. x-------------------------x G.R. No. 171246 April 20, 2006 JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent. D E C I S I O N CARPIO MORALES, J.: A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished." 1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously. The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional. In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates. In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations 2
dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines. Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter 3 dated September 27, 2005, requested for its postponement "due to a pressing operational situation that demands [his utmost personal attention" while "some of the invited AFP officers are currently attending to other urgent operational matters." On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter 4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation." Senate President Drilon, however, wrote 5 Executive Secretary Ermita that the Senators "are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week." Senate President Drilon likewise received on September 28, 2005 a letter 6 from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured. On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," 7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows: SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002); Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998). Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002). (b) Who are covered. The following are covered by this executive order: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President. SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied) Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and another letter 8 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 9 to Senator Biazon, Chairperson of the Committee on National Defense and Security, informing him "that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written approval from the President" and "that no approval has been granted by the President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September 2005." Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending. For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings. As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri. 10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464. 11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464. In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464. In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being unconstitutional. In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging that as a coalition of 17 legal resource non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464, 13 prays, that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it. On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the government. Meanwhile, by letter 14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter 15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing" and that "they will attend once [their] request is approved by the President." As none of those invited appeared, the hearing on February 10, 2006 was cancelled. 16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and those from the Department of Budget and Management 18 having invoked E.O. 464. In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R. Bunye, 19 DOJ Secretary Raul M. Gonzalez 20 and Department of Interior and Local Government Undersecretary Marius P. Corpus 21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita. On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void. All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464. In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective memoranda. After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract. 22
Petitioners in G.R. No. 169660 23 and G.R. No. 169777 24 filed their memoranda on March 7, 2006, while those in G.R. No. 169667 25 and G.R. No. 169834 26 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum. Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum 27 was granted, subsequently filed a manifestation 28 dated March 14, 2006 that it would no longer file its memorandum in the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them. 29
Petitioners submit that E.O. 464 violates the following constitutional provisions: Art. VI, Sec. 21 30
Art. VI, Sec. 22 31
Art. VI, Sec. 1 32
Art. XI, Sec. 1 33
Art. III, Sec. 7 34
Art. III, Sec. 4 35
Art. XIII, Sec. 16 36
Art. II, Sec. 28 37
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum 38 on March 13, 2006 for the dismissal of the petitions for lack of merit. The Court synthesizes the issues to be resolved as follows: 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress; 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation. Essential requisites for judicial review Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Courts power of judicial review are present is in order. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. 39
Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted. Standing Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non- appearance of several officials of the executive department in the investigations called by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464. As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that of the other petitioner groups and individuals who profess to have standing as advocates and defenders of the Constitution, respondents contend that such interest falls short of that required to confer standing on them as parties "injured-in-fact." 40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending power. 41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the constitutionality of E.O. 464. Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin 42 and Valmonte v. Philippine Charity Sweepstakes Office, 43 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464. 44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation 45 is not disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. 46 Verily, the Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. 47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws. The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors, organizations and parties who lack well- defined political constituencies to contribute to the formulation and enactment of legislation that will benefit the nation. 48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary. 49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members, 50 invoke their constitutional right to information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional rights 51 and to the maintenance of the balance of power among the three branches of the government through the principle of checks and balances. 52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives, 53 this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised. 54
The first and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. 55 In fine, PDP-Labans alleged interest as a political party does not suffice to clothe it with legal standing. Actual Case or Controversy Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy. Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her consent or prohibited the appearance of the invited officials. 56 These officials, they claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited their attendance. 57 Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the Presidents consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464. Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for challenging the validity of E.O. 464. The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress. As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O. 464. Constitutionality of E.O. 464 E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order. The power of inquiry The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied) This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees. The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, 58 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate. Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. 59 . . . (Emphasis and underscoring supplied) That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. 60 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation. Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers whose positions it is within the power of Congress to regulate or even abolish." Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations. As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution. For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses, 62 and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464. Executive privilege The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. 63 Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress." 64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." 65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds. 67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations." One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus: Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x" 69 (Emphasis and underscoring supplied) The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine. This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra- governmental advisory and deliberative communications. 70 (Emphasis and underscoring supplied) That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. 71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72
decided in 1974. In issue in that case was the validity of President Nixons 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 Presidents 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 Presidents powers. The Court, nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information. Cases in the U.S. which involve claims of executive privilege against Congress are rare. 73 Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue. 74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the Presidents privilege over his conversations against a congressional subpoena. 75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. 77 Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied) Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information. 78 Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens demands for information. In Chavez v. PCGG, 79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters." 80
The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information. Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the right to information does not extend to matters recognized as "privileged information under the separation of powers," 82 by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. Validity of Section 1 Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately. Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads possession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour. SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions of Congress. MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually issue subpoenas. I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President? MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the House. 83 (Emphasis and underscoring supplied) A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question hour. So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following exchange during the deliberations: MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his reaction. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.| avvphi|.net MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of putting it as Section 31, it should follow Legislative Inquiries. THE PRESIDING OFFICER. What does the committee say? MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer. MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this. MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check and balance but also, in effect, in aid of legislation. MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide? MR. DAVIDE. Yes. 84 (Emphasis and underscoring supplied) Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the question hour. Commissioner Davides only concern was that the two provisions on these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner considered them as identical functions of Congress. The foregoing opinion was not the two Commissioners alone. From the above- quoted exchange, Commissioner Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee. In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government, 85 corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution 86 which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it. An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed. 87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers. 88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congress right to executive information in the performance of its legislative function becomes more imperative. As Schwartz observes: Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain information from any source even from officials of departments and agencies in the executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and executive branches. It is this very separation that makes the congressional right to obtain information from the executive so essential, if the functions of the Congress as the elected representatives of the people are adequately to be carried out. The absence of close rapport between the legislative and executive branches in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as the British question period have perforce made reliance by the Congress upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the executive. 89 (Emphasis and underscoring supplied) Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault. 90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long- standing custom. By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice. Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional. The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part. Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. Validity of Sections 2 and 3 Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the executive privilege." The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order. Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The proviso allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464. Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive privilege. This determination then becomes the basis for the officials not showing up in the legislative investigation. In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that the President has not reversed such determination. Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied claim that the information is being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege. The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads: In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required consent from the President. (Underscoring supplied) The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing. Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possesses information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress. Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President. In fine, an implied claim of privilege has been made by the executive. While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case. 91
(Emphasis and underscoring supplied) Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid. While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or classified information between the President and the public officers covered by this executive order." Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches: The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. 92 (Underscoring supplied) Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. 93
These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez 94 and, more in point, against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon. 95
A.O. Smith v. Federal Trade Commission is enlightening: [T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims of privilege. 96
(Underscoring supplied) And so is U.S. v. Article of Drug: 97
On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has not shown nor even alleged that those who evaluated claimants product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be established. To find these interrogatories objectionable, this Court would have to assume that the evaluation and classification of claimants products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte. 98 (Emphasis and underscoring supplied) Mobil Oil Corp. v. Department of Energy 99 similarly emphasizes that "an agency must provide precise and certain reasons for preserving the confidentiality of requested information." Black v. Sheraton Corp. of America 100 amplifies, thus: A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure. 101
(Emphasis and underscoring supplied) Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: 102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was "a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied; citations omitted) Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. 103 A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S. 104 declares: The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring supplied) The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold information from Congress. Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, 105 or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. 106 The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected." In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect for such officials does not change the infirm nature of the authorization itself. Right to Information E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. 107 (Emphasis and underscoring supplied) The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures 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, Taada v. Tuvera states: The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice. 108 (Emphasis and underscoring supplied) Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented. Conclusion Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied) 109
Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value our right as a people to take part in government. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice (ON LEAVE) REYNATO S. PUNO Associate Justice CONSUELO YNARES- SANTIAGO Asscociate Justice LEONARDO A. QUISUMBING Associate Justice ANGELINA SANDOVAL-GUTIERREZ Asscociate Justice ANTONIO T. CARPIO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Asscociate Justice RENATO C. CORONA Associate Justice ADOLFO S. AZCUNA Asscociate Justice ROMEO J. CALLEJO, SR. Associate Justice DANTE O. TINGA Asscociate Justice MINITA V. CHICO-NAZARIO Associate Justice CANCIO C. GARCIA Asscociate Justice PRESBITERO J. VELASCO, JR. Associate Justice C E R T I F I C A T I O N Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court. ARTEMIO V. PANGANIBAN Chief Justice Footnotes * Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance of a government official or agency, the petitioner which is the most directly affected by the issuance shall be first in the order of enumeration of the titles of the petitions irrespective of their docket numbers or dates of filing. ** On Leave. 1 Hamilton, The Federalist No. 70. 2 Annexes "J-2" to "J-7," rollo (G.R. No. 169777), pp. 72-77. 3 Annex "G," id. at 58. 4 Annex "B," id. at 52. 5 Annex "C," id. at 53. 6 Annex "D," id. at 54-55. 7 Annex "A," id. at 48-51. 8 Annex "F," id. at 57. 9 Annex "H," id. at 59. 10 Rollo (G.R. No. 169777), p. 379. 11 Ibid. 12 The petitioner names the following organizations as members: Albert Schweitzer Association, Philippines, Inc. (ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo Human Rights Center (AHRC), Balay Alternative Legal Advocates for Development in Mindanaw, Inc (BALAOD Mindanaw), Childrens Legal Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC), Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA), Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-LSK/FOEI-Phils.), Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research Organization of Communities and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., Pilipina Legal Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Womens Legal Bureau (WLB), and Womens Legal Education, Advocacy and Defense Foundation, Inc. (WomenLEAD). 13 Rollo (G.R. No. 169667), p. 22. 14 Annex "H," id. at 460-461. 15 Annex "H-1," id. at 462. 16 Rollo (G.R. No. 169777), pp. 383-384. 17 Annex "K," rollo (G.R. No. 169777), p. 466. 18 Annex "J," id. at 465. 19 Annex "M," id. at 468. 20 Annex "N," id. at 469. 21 Annex "O," id. at 470. 22 Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-372. 23 Rollo (G.R. No. 169660), pp. 339-370. 24 Rollo (G.R. No. 169777), pp. 373-439. 25 Rollo (G.R. No. 169667), pp. 388-426. 26 Rollo (G.R. No. 169834), pp. 211-240. 27 Rollo (G.R. No. 169659), pp. 419-421. 28 id. at 469-471. 29 Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572. 30 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. 31 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. 32 Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.1avvphil.net 33 Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. 34 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. 35 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. 36 Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. 37 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. 38 Rollo (G.R. No. 169777), pp. 524-569. 39 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133. 40 Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R. No. 169777), p. 116. 41 Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116. 42 G.R. No. 67752, April 10, 1989, 171 SCRA 657. 43 G.R. No. 78716, September 22, 1987 (res). 44 Rollo (G.R. No. 169777), p. 117. 45 Id. at 279. 46 Ibid. 47 Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632. 48 Section 2 of The Party-List System Act (Republic Act 7941) reads: SEC. 2. Declaration of Policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. 49 Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744 , 761 (1998). 50 IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No 171246), p. 28. 51 Rollo (G.R. No. 169667), p. 3. 52 Rollo (G.R. No. 169660), p. 5. 53 Supra note 39 at 136. 54 Francisco, Jr. v. House of Representatives, supra note 39 at 139. 55 Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983). 56 Rollo (G.R. No. 169659), p. 79. 57 Rollo (G.R. No. 169659), pp. 80-81. 58 87 Phil. 29 (1950). 59 Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927). 60 Id. at 46. 61 G.R. 89914, Nov. 20, 1991, 203 SCRA 767. 62 "WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must be free to explore the alternatives in the process of shaping policies and making decisions since this is fundamental to the operation of the government and is rooted in the separation of powers under the Constitution; x x x x "WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of persons appearing in such inquiries in aid of legislation and due regard to constitutional mandate; x x x" 63 II Record, Constitutional Commission 150-151 (July 23, 1986). 64 B. Schwartz, Executive Privilege and Congressional Investigatory Power 47 Cal. L. Rev. 3. 65 M. Rozell, Executive Privilege and the Modern Presidents: In Nixons Shadow (83 Minn. L. Rev. 1069). 66 P. Shane & H. Bruff, Separation of Powers: Law Cases and Materials 292 (1996). 67 Id. at 293. 68 I L.Tribe, American Constitutional Law 770-1 (3rd ed., 2000). 69 121 F.3d 729, 326 U.S. App. D.C. 276. 70 Blacks Law Dictionary 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton Corp. of America, D.C.D.C., 371 F.Supp. 97, 100. 71 I L.Tribe, supra note 68 at 771. 72 418 U.S. 683 (1974) 73 In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: "It appears that the courts have been drawn into executive-congressional privilege disputes over access to information on only three recent occasions. These were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir.1976), appeal after remand, 567 F.2d 121 (D.C.Cir.1977); Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498 F.2d 725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983)"; Vide R. Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions (87 Iowa L. Rev. 1559): "The Supreme Court has yet to rule on a dispute over information requested by Congress where executive privilege has been asserted; in the past twenty-five years, there have been only three reported cases dealing with this issue." 74 J. Chaper & R. Fallon, Jr., Constitutional Law: Cases Comments Questions 197 (9th ed., 2001). 75 Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725, 162 U.S.App.D.C.183 (May 23, 1974). 76 N. Redlich & B. Schwartz, Constitutional Law 333 (3rd ed. ,1996) states in Note 24: "Now that the Supreme Court decision has specifically recognized a "privilege of confidentiality of Presidential communications," the Select Committee decision appears even stronger. If the need of the Watergate Committee for evidence was not enough before the Supreme Court recognized executive privilege, the same would surely have been true after the recognition. And, if the demand of the Watergate Committee, engaged in a specific investigation of such importance, was not enough to outweigh the nondisclosure claim, it is hard to see what Congressional demand will fare better when met by an assertion of privilege." 77 314 Phil. 150 (1995). 78 Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: "To put this case in perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the freedom of information guarantee of the Constitution." 79 360 Phil. 133 (1998). 80 Chavez v. PCGG, 360 Phil. 133, 160 (1998). 81 433 Phil. 506 (2002). 82 Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002). 83 II Record, Constitutional Commission 199 (July 24, 1986). 84 II Record, Constitutional Commission 900-1 (October 12, 1986). 85 H. Mendoza & A. Lim, The New Constitution 177 (1974). 86 Constitution (1973), Art. VIII, Sec. 12(1). 87 R. Martin, The New Constitution of the Philippines 394 (1973). 88 II Record, Constitutional Commission 133 (July 23, 1986). 89 Schwartz, supra at 11-12. 90 Supra. 91 Supra note 82 at 189. 92 345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953). 93 Vide Tribe, supra note 68. 94 Supra note 78. 95 Supra note 75. 96 403 F.Supp. 1000, 20 Fed,R.Serv.2d 1382 (1975). 97 43 F.R.D. 181 (1967). 98 Ibid., citation omitted. 99 520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981). 100 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974). 101 Ibid., citations omitted. 102 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960). 103 U.S. v. Reynolds, supra note 85. 104 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). 105 In re Sealed Case, supra note 69. 106 Blacks Law Dictionary, supra note 70 at 569. 107 G.R. No. 74930, February 13, 1989, 170 SCRA 256. 108 G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453. 109 Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) 13.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180643 September 4, 2008 ROMULO L. NERI, petitioner, vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents. RESOLUTION LEONARDO-DE CASTRO, J.: 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 Presidents 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. In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Courts co- equal branches of government. In this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld. Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability of Public Officers and Investigations, 1 Trade and Commerce, 2 and National Defense and Security (collectively the "respondent Committees"). 3
A brief review of the facts is imperative. On September 26, 2007, 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 petitioners 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, 4 (b) whether or not she directed him to prioritize it, 5 and (c) whether or not she directed him to approve it. 6
Respondent Committees persisted in knowing petitioners answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioners testimony on the ground of executive privilege. 7 The letter of Executive Secretary Ermita pertinently stated: Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioners 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." Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony. On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and detention. Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on February 1, 2008. In the Courts Resolution dated February 4, 2008, the parties were required to observe the status quo prevailing prior to the Order dated January 30, 2008. On March 25, 2008, the Court granted his petition for certiorari on two grounds: rst, the communications elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under the presidential communications privilege because (a) they related to a quintessential and non-delegable power of the President, (b) they were received by a close advisor of the President, and (c) respondent Committees failed to adequately show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they issued the contempt order arbitrarily and precipitately. On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds: I CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS. II CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED. III CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT: A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS. B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT. C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLI NG NEED TO JUSTI FY THE DI SCLOSURE OF THE INFORMATION SOUGHT. D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS. E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE. IV CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT: A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE. B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA. C. RESPONDENTS DULY I SSUED THE CONTEMPT ORDER I N ACCORDANCE WITH THEIR INTERNAL RULES. D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT. E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE. In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the case. He further submits the following contentions: rst, the assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the presumption of executive privilege because it appears that they could legislate even without the communications elicited by the three (3) questions, and they admitted that they could dispense with petitioners testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential communications privilege; fourth, there is no right to pry into the Presidents thought processes or exploratory exchanges; fth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished advance copy of questions comports with due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court. For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez 9 and Chavez v. Public Estates Authority (PEA) 10 ; (3) the communications elicited by the three (3) questions are covered by executive privilege, because all the elements of the presidential communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order. Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by its untimeliness. The core issues that arise from the foregoing respective contentions of the opposing parties are as follows: (1) whether or not there is a recognized presumptive presidential communications privilege in our legal system; (2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege; (3) whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and (4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order. We shall discuss these issues seriatim. I There Is a Recognized Presumptive Presidential Communications Privilege Respondent Committees ardently argue that the Courts declaration that presidential communications are presumptively privileged reverses the "presumption" laid down in Senate v. Ermita 11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon. Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez, 12 affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita, 13 the case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG), 14 and Chavez v. PEA. 15 The Court articulated in these cases that "there are certain types of information which the government may withhold from the public, 16 " that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters"; 17 and that "the right to information does not extend to matters recognized as privileged information under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings." 18
Respondent Committees observation that this Courts Decision reversed the "presumption that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety. 19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads: From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied) Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive privilege given by the President to said executive official, such that the presumption in this situation inclines heavily against executive secrecy and in favor of disclosure. Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise: Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President", which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case. In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita. Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v. Ermita, 21 to wit: Executive privilege The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwart defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the condentiality of his conversations and correspondences, like the claim of condentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and italics supplied) Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction. Senate v. Ermita 22 expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the Presidents subordinate officials, as follows: 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 he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied) 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. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications." 23
II There Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive Privilege Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive privilege because the elements of the presidential communications privilege are not present. A. The power to enter into an executive agreement is a "quintessential and non- delegable presidential power." First, respondent Committees contend that 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. This argument is unpersuasive. 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. 24 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. 25 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. 26 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. The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President. B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive. Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for the reason that "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." It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case 27 precisely to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct presidential decision-making, thus: We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the Presidents decision- making process is adequately protected. 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. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisors staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate. 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. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in determining whether "[t]he Presidents condentiality interests" is implicated). (Emphasis supplied) In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) 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. 28 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 Executives 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. C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees and the Presidents clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information. Third, respondent Committees claim that the Court erred in upholding the Presidents invocation, through the Executive Secretary, of executive privilege because (a) between respondent Committees specific and demonstrated need and the Presidents generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency, accountability and disclosure of information, specifically, Article III, Section 7; 29 Article II, Sections 24 30 and 28; 31 Article XI, Section 1; 32 Article XVI, Section 10; 33 Article VII, Section 20; 34 and Article XII, Sections 9, 35 21, 36 and 22. 37
It must be stressed that the Presidents 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. Thus, the Letter stated: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which this information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. (emphasis supplied) Even in Senate v. Ermita, it was held that 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. This is a matter of respect for a coordinate and co-equal department. It is easy to discern the danger that goes with the disclosure of the Presidents 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 Peoples Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al. 39
upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated: Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information 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." Even earlier, the same privilege was upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its condential nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: "A complicated negotiation cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in condence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances If these reports should become public who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284) x x x x There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss- Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries,viz: "x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613 (Emphasis supplied; underscoring in the original) Considering that the information sought through the three (3) questions subject of this Petition involves the Presidents dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the Presidents decision-making process, which inevitably would involve her conversations with a member of her Cabinet. With respect to respondent Committees invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees case. There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has been delegated if they are denied access to information. And the policies on public accountability and democratic government would certainly be mere empty words if access to such information of public concern is denied. In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the publics right to information or diminish the importance of public accountability and transparency. This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents investigation the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to appear before respondents to answer the said questions. We have discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right. Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to information. By their wording, the intention of the Framers to subject such right to the regulation of the law is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to information, thus: Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied) In Chavez v. Presidential Commission on Good Government, 40 it was stated that there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as information on inter- government exchanges prior to the conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such state secrets, they must be "examined in strict condence and given scrupulous protection." Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation, not the peoples right to public information. This is the reason why we stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen the power to exact testimony from government officials." As pointed out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's right to information. For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege. III. Respondent Committees Failed to Show That the Communications Elicited by the Three Questions Are Critical to the Exercise of their Functions In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry. At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose of respondent Committees questions can be sufficiently supported by the expedient of mentioning statutes and/ or pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of compelling need for disclosure of the information covered by executive privilege. In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption. We remain unpersuaded by respondents assertions. In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows: "... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public condence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. xxx xxx xxx The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case we must weigh the importance of the general privilege of condentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied) xxx xxx xxx ...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for condentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specic and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in condentiality of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in condentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specic need for evidence in a pending criminal trial. (emphasis supplied) In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a criminal case but rather with the Senates need for information in relation to its legislative functions. This leads us to consider once again just how critical is the subject information in the discharge of respondent Committees functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would "aid" them in crafting legislation. Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the nature of a legislative inquiry in aid of legislation in this wise: The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-nding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government. Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states: A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications. The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be determined without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion: If respondents are operating under the premise that the president and/or her executive ofcials have committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation. For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all. Thus: CHIEF JUSTICE PUNO So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question Number 1 whether the President followed up the NBN project. According to the other counsel this question has already been asked, is that correct? ATTY. AGABIN Well, the question has been asked but it was not answered, Your Honor. CHIEF JUSTICE PUNO Yes. But my question is how critical is this to the lawmaking function of the Senate? ATTY. AGABIN I believe it is critical, Your Honor. CHIEF JUSTICE PUNO Why? ATTY. AGABIN For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include Executive Agreements had been used as a device to the circumventing the Procurement Law. CHIEF JUSTICE PUNO But the question is just following it up. ATTY. AGABIN I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high government officials. CHIEF JUSTICE PUNO Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question? ATTY. AGABIN I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that other government officials who had something to do with the approval of the contract would be offered the same amount of bribes. CHIEF JUSTICE PUNO Again, that is speculative. ATTY. AGABIN That is why they want to continue with the investigation, Your Honor. CHIEF JUSTICE PUNO How about the third question, whether the President said to go ahead and approve the project after being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question? ATTY. AGABIN Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden, the presumption in favor of confidentiality of presidential communication stands. The implication of the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair the Presidents performance of her function. Needless to state this is assumed, by virtue of the presumption. Anent respondent Committees bewailing that they would have to "speculate" regarding the questions covered by the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon 43 held that while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability than on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees self-defeating proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation. Anent the function to curb graft and corruption, it must be stressed that respondent Committees need for information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress. 44
And if this is the primary objective of respondent Committees in asking the three (3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees investigation cannot transgress bounds set by the Constitution. In Bengzon, Jr. v. Senate Blue Ribbon Committee, 45 this Court ruled: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases. 46 (Emphasis supplied) There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really in aid of legislation because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to nd out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the Legislature." 47 (Emphasis and underscoring supplied) The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President. 48 While it may be a worthy endeavor to investigate the potential culpability of high government officials, including the President, in a given government transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyones guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute. Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth," which in respondent Committees view appears to be equated with the search for persons responsible for "anomalies" in government contracts. No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of exposure. 49 In this regard, the pronouncement in Barenblatt v. United States 50 is instructive, thus: Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.) At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public ofcial, employee, ofce or agency when such act or omission appears to be illegal, unjust, improper, or inefcient." 51 The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-dened and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and safeguarded. Should respondent Committees uncover information related to a possible crime in the course of their investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the Legislatures need for information in an investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions subject of the petition. Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on the ground that there is no privilege when the information sought might involve a crime or illegal activity, despite the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica, 52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulllment. Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct. Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or body. IV Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate. We reaffirm our earlier ruling. The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to discuss it once again. Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum. On the contrary, the Court sees the rationale and necessity of compliance with these requirements. An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have been raised many times. 53 Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson. 54 Likewise, witnesses have their constitutional right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little political costs or burdens on the part of Congress when viewed vis- -vis the immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by William P. Marshall, 55 to wit: A second concern that might be addressed is that the current system allows committees to continually investigate the Executive without constraint. One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose.
At present, the charters of some congressional committees are so broad that virtually any matter involving the Executive can be construed to fall within their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and should also serve to contain the investigation once it is instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of action in other areas, they would serve that goal in the context of congressional investigations as well. The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and allows for meaningful debate about the merits of proceeding with the investigation. (Emphasis supplied) Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees. Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to the subject matter under inquiry." Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress compliance therewith. We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia 56 is enlightening, thus: "Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers each House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In the present case, the Courts exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." (Emphasis supplied) In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were present. 57 These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order. When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date. Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008 deliberation when the matter was taken up. Section 21, Article VI of the Constitution states that: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of person appearing in or affected by such inquiries shall be respected. (Emphasis supplied) All the limitations embodied in the foregoing provision form part of the witness settled expectation. If the limitations are not observed, the witness settled expectation is shattered. Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the members are fully articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the proper observance of the Rules. Having touched the subject of the Rules, we now proceed to respondent Committees fourth argument. Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless the same is repealed or amended. On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied) Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the rst time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure) states: RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied) RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied) Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." 59 The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective. Respondent Committees last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument. As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing. On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard of petitioners motion for reconsideration alleging the pendency of his petition for certiorari before this Court. On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated checks and balances among the different branches of government. In the present case, it is respondent Committees contention that their determination on the validity of executive privilege should be binding on the Executive and the Courts. It is their assertion that their internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees paradigm of checks and balances, what are the checks to the Legislatures all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse. While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and granted instead to the other branches of government. There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on the constitutional command of transparency and public accountability. The recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that is its objective. WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is hereby DENIED. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio- Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur. Dissenting Opinion - C.J. Puno Separate Opinion on the Motion for Reconsideration - J. Quisumbing Separate Dissenting Opinion - J. Azcuna Separate Opinion - J. Reyes
Footnotes 1 Chaired by Hon. Senator Alan Peter S. Cayetano. 2 Chaired by Hon. Senator Manuel A. Roxas II. 3 Chaired by Hon. Senator Rodolfo G. Biazon. 4 Transcript of the September 26, 2007 Hearing of the respondent Committees, pp. 91-92. 5 Id., pp. 114-115. 6 Id., pp. 276-277. 7 See Letter dated November 15, 2007. 8 See Letter dated January 30, 2008. 9 G.R. No. 95367, May 23, 1995, 244 SCRA 286. 10 433 Phil. 506 (2002) 11 G.R. No. 169777, April 20, 2006, 488 SCRA 1. 12 Supra., note 9. 13 Supra., note 11. 14 G.R. No. 130716, December 9, 1998, 299 SCRA 744. 15 Supra., note 10. 16 Almonte v. Vasquez, supra., note 9. 17 Chavez v. PCGG, supra., note 14. 18 Senate v. Ermita, supra., note 11. 19 Telefunken Semiconductors Employees Union -FFW v. Court of Appeals, G.R. Nos. 143013-14, December 18, 2000, 348 SCRA 565,587; Valderama v. NLRC, G.R. No. 98239, April 25,1996, 256 SCRA 466, 472 citing Policarpio v. P.V.B. and Associated Ins. & Surety Co., Inc., 106 Phil. 125, 131 (1959). 20 Supra, note 11 at pp. 68-69 21 Id., at pp. 45-46 22 Id., at p. 58 23 Id., at p. 50 24 Webster Encyclopedic Unabridged Dictionary, Gramercy Books 1994, p. 1181. 25 Business Dictionary, http://www.businessdictionary.com/definition/non-delegable-duty.html 26 Usaffe Veterans Association, Inc. v. Treasurer of the Philippines, et al. (105 Phil. 1030, 1038); See also Commissioner of Internal Revenue v. John Gotamco & Sons, Inc. G.R. No. L-31092, February 27, 1987,148 SCRA 36, 39. 27 No. 96-3124, June 17, 1997, 121 F.3d 729,326 U.S. App. D.C. 276. 28 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141. 29 Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 30 Article II, Sec. 24. The State recognizes the vital role of communication and information in nation- building. 31 Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. 32 Article XI, Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. 33 Article XVI, Sec. 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communications structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press. 34 Article VII, Sec. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. 35 Article XII, Sec. 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government. 36 Article XII, Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. 37 Article XII, Sec. 22. Acts which circumvent or negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law. 38 14 F. Supp. 230, 299 U.S. 304 (1936). 39 G.R. No. 170516, promulgated July 16, 2008. 40 Supra note 14. 41 Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). 42 TSN, Oral Argument, March 4, 2008, pp. 417 - 422. 43 Supra, note 41 at pp. 725, 731-32. 44 Senate Select Committee on Presidential Campaign Activities v. Nixon held that Congress "asserted power to investigate and inform" was, standing alone, insufficient to overcome a claim of privilege and so refused to enforce the congressional subpoena. Id. 45 G.R. No. 89914, November 20, 1991, 203 SCRA 767. 46 Id., at p. 776. 47 Id., at p. 783. 48 The dialogue between petitioner and Senator Lacson is a good illustration, thus: SEN. LACSON. Did you report the attempted bribe offer to the President? MR. NERI. I mentioned it to the President, Your Honor. SEN. LACSON: What did she tell you? MR. NERI. She told me, Dont accept it." SEN. LACSON. And then, thats it? MR. NERI. Yeah, because we had other things to discuss during that time. SEN. LACSON. And then after the President told you, "Do not accept it," what did she do? How did you report it to the President? In the same context that it was offered to you? MR. NERI. I remember it was over the phone, Your Honor. SEN. LACSON. Hindi nga. Papaano ninyo ni-report, Inoperan (offer) ako ng bribe na P200 million ni Chairman Abalos or what? How did you report it to her? MR.NERI. Well, I said, Chairman Abalos offered me 200 million for this. SEN. LACSON. Okay. That clear? MR. NERI. Im sorry. SEN. LACSON. That clear? MR. NERI. I think so, Your Honor. SEN. LACSON. And after she told you. Do not accept it, what did she do? MR. NERI. I dont know anymore, Your Honor, but I understand PAGC investigated it or-I was not privy to any action of PAGC. SEN. LACSON. You are not privy to any recommendation submitted by PAGC? MR. NERI. No, Your Honor. SEN. LACSON. How did she react, was she shocked also like you or was it just casually responded to as, "Dont accept." MR. NERI. It was over the phone, Your Honor, so I cannot see her facial expression. SEN. LACSON. Did it have something to do with your change of heart so to speak - your attitude towards the NBN project as proposed by ZTE? MR. NERI. Can you clarify, Your Honor, I dont understand the change of heart. SEN. LACSON. Because, on March 26 and even on November 21, as early as November 21, 2006 during the NEDA Board Cabinet Meeting, you were in agreement with the President that it should be "pay as you use" and not take or pay. There should be no government subsidy and it should be BOT or BOO or any similar scheme and you were in agreement, you were not arguing. The President was not arguing with you, you were not arguing with the President, so you were in agreement and all of a sudden nauwi tayo doon sa lahat ng --- and proposal all in violation of the Presidents Guidelines and in violation of what you thought of the project? MR. NERI. Well, we defer to the implementing agencys choice as to how to implement the project. 49 Watkins v. United States, 354 U.S. 178 (1957). 50 360 U.A. 109, 3 L Ed. 2d 1115, 69 S CT 1081 (1959). 51 Article XI, Section 13, par.1 of the Constitution. 52 487 F. 2d 700. 53 Professor Christopher Schroeder (then with the Clinton Justice Department), for example, labeled some of Congresss investigations as no more than "vendetta oversight" or "oversight that seems primarily interested in bringing someone down, usually someone close to the President or perhaps the President himself." Theodore Olson (the former Solicitor General in the Bush Justice Department), in turn, has argued that oversight has been used improperly by Congress to influence decision making of executive branch officials in a way that undercuts the Presidents power to assure that laws are faithfully executed. (Marshall, The Limits on Congress Authority to Investigate the President, Marshall- Illinois.Doc, November 24, 2004.) 54 103 U.S. 168 (1880). 55 Kenan Professor of Law, University of North Carolina. 56 G.R. No. 127255, August 14, 1997, 277 SCRA 268. 57 Transcript of the January 30, 2008 proceedings pp. 5-7. 58 TSN, March 4, 2008, at pp. 529-530. 59 Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 168338 February 15, 2008 FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents. SEPARATE CONCURRING OPINION CARPIO, J.: The Case This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005, warning radio and television stations against airing taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano) 1 under pain of suspension or revocation of their airwave licenses. The Facts On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential elections. 2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging" the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacaang Palace, where he played before the presidential press corps two compact disc recordings of conversations between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano. However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not President Arroyos after all. 3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes. 4
Respondent Gonzalez ordered the National Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping Law. On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to them. 5 On 14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom. 6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes. In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to litigate and (2) the petition fails to meet the case or controversy requirement in constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11 June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the lack of authentication of the Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to radio and television stations. In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti- Wiretapping Law, making it a "cleverly disguised x x x gag order." ISSUE The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior restraint on freedom of expression. I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. 1. Standing to File Petition Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the government action is directed at such citizen. The government action may chill into silence those to whom the action is directed. Any citizen must be allowed to take up the cudgels for those who have been cowed into inaction because freedom of expression is a vital public right that must be defended by everyone and anyone. Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is of transcendental importance that must be defended by every patriotic citizen at the earliest opportunity. We have held that any concerned citizen has standing to raise an issue of transcendental importance to the nation, 7 and petitioner in this present petition raises such issue. 2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition 8 to the exercise of almost all other civil and political rights. No society can remain free, open and democratic without freedom of expression. Freedom of expression guarantees full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a free and democratic society must zealously safeguard freedom of expression. Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Freedom of expression crystallizes important public policy issues, and allows citizens to participate in the discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise would not be heard by government. Freedom of expression provides a civilized way of engagement among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he might use his fist instead. Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free expression for the ideas we hate. 9 Indeed, the function of freedom of expression is to stir disputes: [I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. 10
Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression: No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity. The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, 11 false or misleading advertisement, 12 advocacy of imminent lawless action, 13 and danger to national security. 14 All other expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow and well understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals." 15
Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution. Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior restraint is directed at protected expression, courts will strike down the restraint as unconstitutional because there can be no content-based prior restraint on protected expression. The analysis thus turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected expression, that is, those not falling under any of the recognized categories of unprotected expression. If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places 16
without any restraint on the content of the expression. Courts will subject content- neutral restraints to intermediate scrutiny. 17
An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. 18 Courts will uphold time, place or manner restraints if they are content- neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression. 19
In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus, submission of movies or pre- taped television programs to a government review board is constitutional only if the review is for classification and not for censoring any part of the content of the submitted materials. 20 However, failure to submit such materials to the review board may be penalized without regard to the content of the materials. 21 The review board has no power to reject the airing of the submitted materials. The review boards power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The power to classify expressions applies only to movies and pre-taped television programs 22 but not to live television programs. Any classification of live television programs necessarily entails prior restraint on expression. Expression that may be subject to prior restraint is unprotected expression or low- value expression. By definition, prior restraint on unprotected expression is content- based 23 since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October 2007. 24
Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. 25
Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. 26 The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest. Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment, 27 either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior restraint, 28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows. 29
Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction, 30 such expression cannot be subject to prior restraint. If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature must punish the unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on such expression. The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression pornography, 31 advocacy of imminent lawless action, and danger to national security - is the clear and present danger test. 32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent. 33
Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits. 34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies. 3. Government Action in the Present Case The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio and television stations is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation. Specifically, the NTC press release contains the following categorical warning: Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certicate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. (Boldfacing and underscoring supplied) The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a right and duty to prevent. The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to now, the parties to the conversations in the Garci Tapes have not complained that the wire-tapping was without their consent, an essential element for violation of the Anti-Wiretapping Law. 35 It was even the Office of the President, through the Press Secretary, that played and released to media the Garci Tapes containing the alleged "spliced" conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether a wireless cellular phone conversation is covered by the Anti-Wiretapping Law. Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations. 36
The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false information and/or willful misrepresentation." However, the NTC does not claim that such possible false information or willful misrepresentation constitutes misleading commercial advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint. Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public. 37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading commercial advertisement. The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only "after a prosecution or appropriate investigation" can it be established that the Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful misrepresentation. 4. Nature of Prior Restraint in the Present Case The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes. The NTCs claim that the Garci Tapes might contain "false information and/or willful misrepresentation," and thus should not be publicly aired, is an admission that the restraint is content-based. 5. Nature of Expression in the Present Case The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections. Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, 38 and among different kinds of political expression, the subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open. The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the security of the State. 39
The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression. 40 The only exceptions to this rule are the four recognized categories of unprotected expression. However, the content of the Garci Tapes does not fall under any of these categories of unprotected expression. The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the peoples right to information on matters of public concern. 41 The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs significantly from subsequent punishment of protected expression. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping Law. 6. Only the Courts May Impose Content-Based Prior Restraint The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-based censorship power over radio and television stations. In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint. Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception. As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter wattage, and location of radio and television stations, but not the content of the broadcasts. Such content-neutral prior restraint may make operating radio and television stations more costly. However, such content-neutral restraint does not restrict the content of the broadcast. 7. Government Failed to Overcome Presumption of Invalidity Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to prove that the NTC action is constitutional. The Government has failed to meet this burden. In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio and television stations to observe the Anti- Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes. Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the violation is committed. Respondents have not explained why there is a need in the present case to impose prior restraint just to prevent a possible future violation of the Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior restraint on all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of sweeping and endless censorship on broadcast media. 8. The NTC Warning is a Classic Form of Prior Restraint The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent. In Burgos v. Chief of Staff, 42 this Court ruled that the closure of the We Forum newspapers under a general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law." The NTC warning to radio and television stations not to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect a prior restraint on constitutionally protected expression. In the recent case of David v. Macapagal-Arroyo, 43 this Court declared unconstitutional government threats to close down mass media establishments that refused to comply with government prescribed "standards" on news reporting following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. The Court described these threats in this manner: Thereafter, a wave of warning[s] came from government ofcials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outt that violates rules set out for media coverage during times when the national security is threatened. 44 (Emphasis supplied) The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court ruled that "the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL." 45
The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC warning is a classic form of prior restraint on protected expression, which in the words of Near v. Minnesota is "the essence of censorship." 46 Long before the American Declaration of Independence in 1776, William Blackstone had already written in his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no previous restraints upon publication x x x." 47
Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel permits remains real and effective, for without airwaves or frequencies, radio and television stations will fall silent and die. The NTC press release does not seek to advance a legitimate regulatory objective, but to suppress through coercion information on a matter of vital public concern. 9. Conclusion In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based prior restraint on protected expression. This rule has no exception. I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. ANTONIO T. CARPIO Associate Justice
Footnotes 1 The taped conversations are referred to here as the "Garci Tapes." 2 Report of the Joint Committee on the Canvass of Votes for the Presidential and Vice-Presidential Candidates in the May 10, 2004 Elections, dated 23 June 2004. 3 In their Comment to the petition, the NTC and respondent Gonzalez only mentioned Bunyes press conference of 6 June 2005. However, respondents do not deny petitioners assertion that the 9 June 2005 press conference also took place. 4 On 7 June 2005, Atty. Alan Paguia, counsel of former President Joseph Ejercito Estrada, gave to a radio station two tapes, including the Garci Tapes, which he claimed to be authentic. On 10 June 2005, Samuel Ong, a high ranking official of the National Bureau of Investigation, presented to the media the alleged "master tape" of the Garci Tapes. 5 The press release reads in its entirety: NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/ OPERATORS TO OBSERVE ANTI-WIRE TAPPING LAW AND PERTINENT NTC CIRCULARS ON PROGRAM STANDARDS In view of the unusual situation the country is in today, The (sic) National Telecommunications Commission (NTC) calls for sobriety among the operators and management of all radio and television stations in the country and reminds them, especially all broadcasters, to be careful and circumspect in the handling of news reportage, coverages [sic] of current affairs and discussion of public issues, by strictly adhering to the pertinent laws of the country, the current program standards embodied in radio and television codes and the existing circulars of the NTC. The NTC said that now, more than ever, the profession of broadcasting demands a high sense of responsibility and discerning judgment of fairness and honesty at all times among broadcasters amidst all these rumors of unrest, destabilization attempts and controversies surrounding the alleged wiretapping of President GMA (sic) telephone conversations. Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the Commission reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular No. 111-12-85 explicitly states, among others, that "all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech play, act or scene or other matters being broadcast and/or telecast if the tendency thereof" is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated in NTC Memorandum Circular No. 22-89 which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The Commission will not hesitate, after observing the requirements of due process, to apply with full force the provisions of the said Circulars and their accompanying sanctions or erring radio and television stations and their owners/operators. 6 The joint press statement reads (Rollo, pp. 62-63): JOINT PRESS STATEMENT: THE NTC AND KBP 1. Call for sobriety, responsible journalism, and of law, and the radio and television Codes. 2. NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. 3. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. 4. What is being asked by NTC is that the exercise of press freedom is done responsibly. 5. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. 6. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. 7. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same. 7 David v. Macapagal-Arroyo, G.R. No. 1713396, 3 May 2006, 489 SCRA 160. 8 In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo wrote that freedom of expression is "the matrix, the indispensable condition, of nearly every other form of freedom." 9 See dissenting opinion of Justice Oliver Wendell Holmes in United States v. Schwimmer, 279 U.S. 644 (1929). 10 Terminiello v. Chicago, 337 U.S. 1, 4 (1949). 11 Gonzales v. Kalaw-Katigbak, No. L-69500, 22 July 1985, 137 SCRA 717. 12 Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, G.R. No. 173034, 9 October 2007. Another fundamental ground for regulating false or misleading advertisement is Section 11(2), Article XVI of the Constitution which states: "The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare." 13 Eastern Broadcasting Corporation v. Dans, No. L-59329, 19 July 1985, 137 SCRA 628. 14 Id. 15 512 U.S. 622, 640 (1994). 16 Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, G.R. Nos. 169838, 169848 and 156881, 25 April 2006, 488 SCRA 2260. 17 Constitutional Law, Erwin Chemerinsky, pp. 902, 936 (2 nd Edition). 18 Ruiz v. Gordon, 211 Phil. 411 (1983). 19 United States v. Grace, 461 U.S. 171 (1983). 20 Gonzalez v. Kalaw-Katigbak, see Note 11. The Court declared, "It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classication of lms." 21 Movie and Television Review and Classification Board v. ABS-CBN Broadcasting Corporation, G.R. No. 155282, 17 January 2005, 448 SCRA 5750. 22 A case may be made that only television programs akin to motion pictures, like tele-novelas, are subject to the power of review and classification by a government review board, and such power cannot extend to other pre-taped programs like political shows. 23 Constitutional Law, Chemerinsky, see Note 17, p. 903. 24 See Note 12. 25 Iglesia ni Cristo (INC) v. Court of Appeals, Board of Review for Motion Pictures and Television, G.R. No. 119673, 26 July 1996, 259 SCRA 529; New York Times v. United States, 403 U.S. 713 (1971). 26 Id. 27 Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L-82380, 29 April 1988, 160 SCRA 861. 28 Social Weather Station, et al. v. COMELEC, 409 Phil. 571 (2001). 29 See Note 25. 30 VRS Publications, Inc. v. Islamic Dawah Council of the Philippines, Inc., 444 Phil. 230 (2003). In effect, this makes "hate speech" against a religious or ethnic minority a protected expression. 31 In pornography or obscenity cases, the ancillary test is the contemporary community standards test enunciated in Roth v. United States (354 U.S. 476 [1957]), which asks: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. See Gonzalez v. Kalaw-Katigbak, Note 11. 32 See notes 12 and 13. In false or misleading advertisement cases, no test was enunciated in Pharmaceutical and Health Care Association of the Philippines v. Health Secretary (see Note 12) although the Concurring and Separate Opinion of Chief Justice Reynato S. Puno advocated the four-part analysis in Central Hudson Gas & Electric v. Public Service Commission (447 U.S. 557 [1980]), to wit: (1) the advertisement must concern lawful activity and not be misleading; (2) the asserted governmental interest must be substantial; (3) the state regulation directly advances the governmental interest asserted; and (4) the restriction is no more extensive than is necessary to serve that interest. 33 Bayan v. Ermita, see Note 16. In the United States, the prevailing test is the Brandenburg standard (Brandenburg v. Ohio, [395 U.S. 444 1969]) which refined the clear and present danger rule articulated by Justice Oliver Wendell Holmes in Schenck v. United States (249 U.S. 47 [1919]) by limiting its application to expressions where there is "imminent lawless action." See American Constitutional Law, Otis H. Stephen, Jr. and John M. Scheb II, Vol. II, p. 133 (4 th Edition). 34 Federal Communications Commission v. League of Women Voters, 468 U.S. 364 (1984). 35 Section 1, Republic Act No. 4200. 36 69 Phil. 635 (1940). 37 See Note 12. 38 Some commentators, including Prof. Robert Bork, argue that political expression is the only expression protected by the Free Speech Clause. The U.S. Supreme Court has rejected this view. Constitutional Law, Chemerinsky, see Note 17, p. 897. 39 See Commonwealth Act No. 616 and Article 117 of the Revised Penal Code. 40 See Bartnicki v. Vopper, 532 U.S. 514 (2001). In this case, the U.S. Supreme Court held that an anti-wiretapping law violates the First Amendment if it prohibits disclosure of intercepted information that is of significant public concern. 41 Section 7, Article III, Constitution. 42 218 Phil. 754 (1984). 43 See Note 7. 44 Id. at 268. 45 Id. at 275. 46 283 U.S. 697 (1931). 47 American Constitutional Law, Ralph A. Rossum and G. Alan Tass, vol. II, p. 183 (7 th
Edition).
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 183533 September 25, 2012 IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF FRANCIS SAEZ, Petitioner, vs. GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY GOMEZ, Respondents. For action by the Court is the Motion for Reconsideration 1 dated September 26, 2010 filed by petitioner Francis Saez of our Resolution 2 dated August 31, 2010 denying the Petition for Review 3 he filed on July 21, 2008. The Office of the Solicitor General (OSG) filed its Comment 4 thereon stating that it does not find cogent grounds to warrant setting aside our decision. Antecedent Facts On March 6, 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs of amparo and habeas data with prayers for temporary protection order, inspection of place and production of documents. 5 In the petition, he expressed his fear of being abducted and killed; hence, he sought that he be placed in a sanctuary appointed by the Court. He likewise prayed for the military to cease from further conducting surveillance and monitoring of his activities and for his name to be excluded from the order of battle and other government records connecting him to the Communist Party of the Philippines (CPP). Without necessarily giving due course to the petition, the Court issued the writ of amparo commanding the respondents to make a verified return, and referred the case to the Court of Appeals (CA) for hearing and decision.The case before the CA was docketed as CA-G.R. SP No. 00024 WOA. In the Return of the Writ, 6 the respondents denied the assignment in the units of Captains Lawrence Banaag and Rommel Gutierrez and Corporal Ariel Fontanilla. The respondents also alleged that the names and descriptions of "Capt. Alcaydo," "a certain First Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient to properly identify some of the persons sought to be included as among the respondents in the petition. On the other hand, respondents General Hermogenes Esperon, Jr. (Gen. Esperon), Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A. Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico Duquil submitted their affidavits. The CA conducted hearings with an intent to clarify what actually transpired and to determine specific acts which threatened the petitioners right to life, liberty or security. During the hearings, the petitioner narrated that starting April 16, 2007, he noticed that he was always being followed by a certain "Joel," a former colleague at Bayan Muna. "Joel" pretended peddling pandesal in the vicinity of the petitioners store. Three days before the petitioner was apprehended, "Joel" approached and informed him of his marital status and current job as a baker in Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still involved with ANAKPAWIS. When asked by the CA justices during the hearing if the petitioner had gone home to Calapan after having filed the petition, he answered in the negative explaining that he was afraid of Pvt. Osio who was always at the pier. CA-G.R. SP No. 00024 WOA On July 9, 2008, the CA rendered its Decision, 7 denying on formal and substantial grounds the reliefs prayed for in the petition and dropping former President Gloria Macapagal Arroyo as a respondent. The CA ratiocinated: There was no attempt at all to clarify how petitioner came to know about Zaldy Osios presence at their pier if the former had not gone home since the petition was filed and what Zaldy Osio was doing there to constitute violation or threat to violate petitioners right to life, liberty or security. This Court cannot just grant the privilege of the writs without substantial evidence to establish petitioners entitlement thereto. This Court cannot grant the privilege of the writs applied for on mere speculation or conjecture. This Court is convinced that the Supreme Court did not intend it to be so when the rules on the writs of Amparo and Habeas Data were adopted. It is the impression of this Court that the privilege of the writs herein prayed for should be considered as extraordinary remedies available to address the specific situations enumerated in the rules and no other. x x x x Not only did the petition and the supporting affidavit x x x fail to allege how the supposed threat or violation of petitioners [right to] life, liberty and security is committed. Neither is there any narration of any circumstances attendant to said supposed violation or threat to violatepetitioners right to life, liberty or security to warrant entitlement to the privilege of the writs prayed for. x x x x A reading of the petition will show that the allegations therein do not comply with the aforestated requirements of Section 6 Rule on the Writ of Habeas Data of the pertinent rule. The petition is bereft of any allegation stating with specific definiteness as to how petitioners right to privacy was violated or threatened to be violated. He did not include any allegation as to what recourses he availed of to obtain the alleged documents from respondents. Neither did petitioner allege what specific documents he prays for and from whom or [sic] from what particular office of the government he prays to obtain them. The petition prays "to order respondents to produce any documents submitted to any of them in the matter of any report on the case of FRANCIS SAEZ, including all military intelligence reports." x x x x Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No. 07-9-12-SC and Section 16, A.M. No. 08-1-16-SC) provide that the parties shall establish their claims by substantial evidence. Not only was petitioner unable to establish his entitlement to the privilege of the writs applied for, the exigency thereof was negated by his own admission that nothing happened between him and Joel after July 21, 2007. The filing of the petition appears to have been precipitated by his fear that something might happen to him, not because of any apparent violation or visible threat to violate his right to life, liberty or security. Petitioner was, in fact, unable to establish likewise who among the respondents committed specific acts defined under the rules on both writs to constitute violation or threat to violate petitioners rights to life, liberty or security or his right to privacy thereof. x x x x x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224) is aptly instructive: "Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. x x x." x x x x IV. The petition lacks proper verification in violation of Section 12, 2004 Rules on Notarial Practice. 8
On July 21, 2008, Petition for Review was filed assailing the foregoing CA decision with the following issues submitted for resolution: WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN DISMISSING THE PETITION AND DROPPING GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT. WHETHER OR NOT THE NOTARIAL OFFICERS OMISSION OF REQUIRING FROM THE PETITIONER IDENTIFICATION CARDS RELATIVE TO THE LATTERS EXECUTION OF THE VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING JUSTIFIES THE DENIAL OF THE PETITION. WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN IT FAILED TO CONCLUDE FROM THE EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY BEING PLACED IN THE ORDER OF BATTLE LIST, THREATS AND VIOLATIONS TO THE LATTERS LIFE, LIBERTY AND SECURITY WERE ACTUALLY COMMITTED BY THE RESPONDENTS. 9
Courts Resolution dated August 31, 2010 On August 31, 2010, the Court issued the Resolution 10 denying the petition for review for the following reasons, viz: A careful perusal of the subject petition shows that the CA correctly found that the petition was bereft of any allegation as to what particular acts or omission of respondents violated or threatened petitioners right to life, liberty and security. His claim that he was incommunicado lacks credibility as he was given a cellular phone and allowed to go back to Oriental Mindoro. The CA also correctly held that petitioner failed to present substantial evidence that his right to life, liberty and security were violated, or how his right to privacy was threatened by respondents. He did not specify the particular documents to be secured, their location or what particular government office had custody thereof, and who has possession or control of the same. He merely prayed that the respondents be ordered "to produce any documents submitted to any of them in the matter of any report on the case of FRANCIS SAEZ, including all military intelligence reports." Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact Sheet, he had specifically detailed the violation of his right to privacy as he was placed in the Order of Battle and promised to have his record cleared if he would cooperate and become a military asset. However, despite questions propounded by the CA Associate Justices during the hearing, he still failed to enlighten the appellate court as to what actually transpired to enable said court to determine whether his right to life, liberty or security had actually been violated or threatened. Records bear out the unsubstantiated claims of petitioner which justified the appellate courts dismissal of the petition. As to petitioners argument that the CA erred in deleting the President as party- respondent, we find the same also to be without merit. The Court has already made it clear in David v. Macapagal-Arroyo that the President, during his or her tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if the President can be dragged into court litigations while serving as such. Furthermore, it is important that the President be freed from any form of harassment, hindrance or distraction to enable the President to fully attend to the performance of official duties and functions. 11
(Citation omitted) Hence, the petitioner filed the instant motion for reconsideration. 12
Petitioners Arguments Contrary to the CAs findings, it had been shown by substantial evidence and even by the respondents own admissions that the petitioners life, liberty and security were threatened. Military personnel, whom the petitioner had named and described, knew where to get him and they can do so with ease. He also became a military asset, but under duress, as the respondents had documents allegedly linking him to the CPP and including him in the order of battle. The petitioner claims that the foregoing circumstances were not denied by the respondents. The petitioner likewise challenges the CAs finding that he was not rendered incommunicado as he was even provided with a cellular phone. The petitioner argues that the phone was only given to him for the purpose of communicating with the respondents matters relative to his infiltration activities of target legal organizations. The petitioner cites Secretary of National Defense v. Manalo, 13 which pronounced that "in the amparo context, it is more correct to say that the right to security is actually the freedom from threat". 14 According to the petitioner, his freedom from fear was undoubtedly violated, hence, to him pertains a cause of action. Anent the quantum of proof required in a petition for the issuance of the writ of amparo, mere substantial evidence is sufficient. The petition "is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings". 15
Sadly, in the petitioners case, the court not only demanded a greater quantum of proof than what the rules require, but it also accorded special preference for the respondents evidence. The petitioner also cites a speech delivered in Siliman University by former Chief Justice Reynato Puno who expressed that "the remedy of habeas data can be used by any citizen against any governmental agency or register to find out what information is held about his or her person." The person can likewise "request the rectification or even the destruction of erroneous data gathered and kept against him or her." In the petitioners case, he specifically sought the production of the order of battle, which allegedly included his name, and other records which supposedly contain erroneous data relative to his involvement with the CPP. OSGs Comment In the respondents comment 16 filed by the OSG, it is generally claimed that the petitioner advances no cogent grounds to justify the reversal of the Courts Resolution dated August 31, 2010. The Courts Disquisition While the issuance of the writs sought by the petitioner cannot be granted, the Court nevertheless finds ample grounds to modify the Resolution dated August 31, 2010. The petition conforms to the requirements of the Rules on the Writs of Amparo and Habeas Data Section 5 17 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section 6 18 of A.M. 08-1-16-SC (Rule on the Writ of Habeas Data) provide for what the said petitions should contain. In the present case, the Court notes that the petition for the issuance of the privilege of the writs of amparo and habeas data is sufficient as to its contents. The petitioner made specific allegations relative to his personal circumstances and those of the respondents. The petitioner likewise indicated particular acts, which are allegedly violative of his rights and the participation of some of the respondents in their commission. As to the pre-requisite conduct and result of an investigation prior to the filing of the petition, it was explained that the petitioner expected no relief from the military, which he perceived as his oppressors, hence, his request for assistance from a human rights organization, then a direct resort to the court. Anent the documents sought to be the subject of the writ of habeas data prayed for, the Court finds the requirement of specificity to have been satisfied. The documents subject of the petition include the order of battle, those linking the petitioner to the CPP and those he signed involuntarily, and military intelligence reports making references to him. Although the exact locations and the custodians of the documents were not identified, this does not render the petition insufficient. Section 6(d) of the Rule on the Writ of Habeas Data is clear that the requirement of specificity arises only when the exact locations and identities of the custodians are known. The Amparo Rule was not promulgated with the intent to make it a token gesture of concern for constitutional rights. 19 Thus, despite the lack of certain contents, which the Rules on the Writs of Amparo and Habeas Data generally require, for as long as their absence under exceptional circumstances can be reasonably justified, a petition should not be susceptible to outright dismissal. From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the writs of amparo and habeas data filed conform to the rules. However, they are mere allegations, which the Court cannot accept "hook, line and sinker", so to speak, and whether substantial evidence exist to warrant the granting of the petition is a different matter altogether. No substantial evidence exists to prove the petitioners claims The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing of a petition for the privilege of the writs of amparo and habeas data, not only direct evidence, but circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the admissible evidence adduced. 20
With the foregoing in mind, the Court still finds that the CA did not commit a reversible error in declaring that no substantial evidence exist to compel the grant of the reliefs prayed for by the petitioner. The Court took a second look on the evidence on record and finds no reason to reconsider the denial of the issuance of the writs prayed for. In the hearing before the CA, it was claimed that "Joel" once inquired from the petitioner if the latter was still involved with ANAKPAWIS. By itself, such claim cannot establish with certainty that the petitioner was being monitored. The encounter happened once and the petitioner, in his pleadings, nowhere stated that subsequent to the time he was asked about his involvement with ANAKPAWIS, he still noticed "Joel" conducting surveillance operations on him. He alleged that he was brought to the camp of the 204th Infantry Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m. The petitioner and the respondents have conflicting claims about what transpired thereafter. The petitioner insisted that he was brought against his will and was asked to stay by the respondents in places under the latters control. The respondents, on the other hand, averred that it was the petitioner who voluntarily offered his service to be a military asset, but was rejected as the former still doubted his motives and affiliations. Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit that questions of fact and law can be raised before the Court in a petition for review on certiorari under Rule 45. As a rule then, the Court is not bound by the factual findings made by the appellate court which rendered the judgment in a petition for the issuance of the writs of amparo and habeas data. Be that as it may, in the instant case, the Court agrees with the CA that the petitioner failed to discharge the burden of proof imposed upon him by the rules to establish his claims. It cannot be overemphasized that Section 1 of both the Rules on the Writ of Amparo and Habeas Data expressly include in their coverage even threatened violations against a persons right to life, liberty or security. Further, threat and intimidation that vitiate the free will although not involving invasion of bodily integrity nevertheless constitute a violation of the right to security in the sense of "freedom from threat". 21
It must be stressed, however, that such "threat" must find rational basis on the surrounding circumstances of the case. In this case, the petition was mainly anchored on the alleged threats against his life, liberty and security by reason of his inclusion in the militarys order of battle, the surveillance and monitoring activities made on him, and the intimidation exerted upon him to compel him to be a military asset. While as stated earlier, mere threats fall within the mantle of protection of the writs of amparo and habeas data, in the petitioners case, the restraints and threats allegedly made allegations lack corroborations, are not supported by independent and credible evidence, and thus stand on nebulous grounds. The Court is cognizant of the evidentiary difficulties attendant to a petition for the issuance of the writs. Unlike, however, the unique nature of cases involving enforced disappearances or extra-judicial killings that calls for flexibility in considering the gamut of evidence presented by the parties, this case sets a different scenario and a significant portion of the petitioners testimony could have been easily corroborated. In his Sinumpaang Salaysay 22 dated March 5, 2008 and the Fact Sheet dated December 9, 2007 23 executed before the Alliance for the Advancement of Peoples Rights-Southern Tagalog (KARAPATAN-ST), the petitioner stated that when he was invited and interrogated at the military camp in Naujan, Oriental Mindoro, he brought with him his uncle Norberto Roxas, Barangay Captain Mario Ilagan and two of his bodyguards, and Edwardo Estabillo five witnesses who can attest and easily corroborate his statement but curiously, the petitioner did not present any piece of evidence, whether documentary or testimonial, to buttress such claim nor did he give any reason for their non-presentation.This could have made a difference in light of the denials made by the respondents as regards the petitioners claims. The existence of an order of battle and inclusion of the petitioners name in it is another allegation by the petitioner that does not find support on the evidence adduced. The Court notes that such allegation was categorically denied by respondent Gen. Avelino I. Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that he "does not have knowledge about any Armed Forces of the Philippines (AFP) order of battle which allegedly lists the petitioner as a member of the CPP." 24
This was also denied by Pvt. Osio, who the petitioner identified as the one who told him that he was included in the order of battle. 25 The 2nd Infantry (Jungle Fighter) Division of the Philippine Army also conducted an investigation pursuant to the directive of AFP Chief of Staff Gen. Esperon, 26 and it was shown that the persons identified by the petitioners who allegedly committed the acts complained of were not connected or assigned to the 2nd Infantry Division. 27
Moreover, the evidence showed that the petitioners mobility was never curtailed. From the time he was allegedly brought to Batangas in August of 2007 until the time he sought the assistance of KARAPATAN-ST, there was no restraint upon the petitioner to go home, as in fact, he went home to Mindoro on several instances. And while he may have been wary of Pvt. Osios presence at the pier, there was no claim by the petitioner that he was threatened or prevented by Pvt. Osio from boarding any vehicle that may transport him back home. The petitioner also admitted that he had a mobile phone; hence, he had unhampered access to communication and can readily seek assistance from non-governmental organizations and even government agencies. The respondents also belied the petitioners claim that they forced him to become a military informant and instead, alleged that it was the petitioner who volunteered to be one. Thus, in his Sinumpaang Salaysay 28 executed on March 25, 2008, Pvt. Osio admitted that he actually knew the petitioner way back in 1998 when they were still students. He also stated that when he saw the petitioner again in 2007, the latter manifested his intention to become a military informant in exchange for financial and other forms of assistance. The petitioner also harps on the alleged "monitoring" activities being conducted by a certain "Joel", e.g., the latters alleged act of following him, pretending to peddle pandesal and asking him about his personal circumstances. Such allegation by the petitioner, however, is, at best, a conclusion on his part, a mere impression that the petitioner had, based on his personal assessment of the circumstances. The petitioner even admitted in his testimony before the CA that when he had a conversation with "Joel" sometime in July 2007, the latter merely asked him whether he was still connected with ANAKPAWIS, but he was not threatened "with anything" and no other incident occurred between them since then. 29 There is clearly nothing on record which shows that "Joel" committed overt acts that will unequivocally lead to the conclusion arrived at by the petitioner, especially since the alleged acts committed by "Joel" are susceptible of different interpretations. Given that the totality of the evidence presented by the petitioner failed to support his claims, the reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does not mean that a claimant is dispensed with the onus of proving his case. "Indeed, even the liberal standard of substantial evidence demands some adequate evidence." 30
The President cannot be automatically dropped as a respondent pursuant to the doctrine of command responsibility In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al., 31 the Court stated: a. Command responsibility of the President Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be resolved whether the president, as commander- in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the affirmative. To hold someone liable under the doctrine of command responsibility, the following elements must obtain: a. the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; b. the superior knew or had reason to know that the crime was about to be or had been committed; and c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof. The president, being the commander-in-chief of all armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine of Command Responsibility in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226). Under E.O. 226, a government official may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission. Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government officials area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved. Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military. (Citations omitted) Pursuant to the doctrine of command responsibility, the President, as the Commander-in-Chief of the AFP, can be held liable for affront against the petitioners rights to life, liberty and security as long as substantial evidence exist to show that he or she had exhibited involvement in or can be imputed with knowledge of the violations, or had failed to exercise necessary and reasonable diligence in conducting the necessary investigations required under the rules.1wphi1 The Court also stresses that rule that the presidential immunity from suit exists only in concurrence with the presidents incumbency. 32
Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure. 33 Courts look with disfavor upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right. 34
The petitioner, however, is not exempted from the burden of proving by substantial evidence his allegations against the President to make the latter liable for either acts or omissions violative of rights against life, liberty and security. In the instant case, the petitioner merely included the Presidents name as a party respondent without any attempt at all to show the latters actual involvement in, or knowledge of the alleged violations. Further, prior to the filing of the petition, there was no request or demand for any investigation that was brought to the Presidents attention. Thus, while the President cannot be completely dropped as a respondent in a petition for the privilege of the writs of amparo and habeas data merely on the basis of the presidential immunity from suit, the petitioner in this case failed to establish accountability of the President, as commander-in-chief, under the doctrine of command responsibility. Compliance with technical rules of procedure is ideal but it cannot be accorded primacy Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo and habeas data was the defective verification which was attached to the petition. In Tagitis, 35 supporting affidavits required under Section 5(c) of the Rule on the Writ of Amparo were not submitted together with the petition and it was ruled that the defect was fully cured when the petitioner and the witness personally testified to prove the truth of their allegations in the hearings held before the CA. In the instant case, the defective verification was not the sole reason for the CAs denial of the petition for the issuance of the writs of amparo and habeas data. Nonetheless, it must be stressed that although rules of procedure play an important rule in effectively administering justice, primacy should not be accorded to them especially in the instant case where there was at least substantial compliance with the requirements and where petitioner himself testified in the hearings to attest to the veracity of the claims which he stated in his petition. To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded primacy. In the proceedings before the CA, the petitioner himself testified to prove the veracity of his allegations which he stated in the petition. Hence, the defect in the verification attached to the petition. Hence, the defect in the verification attached to the petition was deemed cured. WHEREFORE, premises considered, the petitioner's motion for reconsideration is DENIED WITH FINALITY. SO ORDERED. BIENVENIDO L. REYES Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice ARTURO D. BRION Associate Justice DIOSDADO M. PERALTA Associate Justice LUCAS P. BERSAMIN Associate Justice (On Official Business) MARIANO C. DEL CASTILLO *
Associate Justice (On Leave) ROBERTO A. ABAD **
Associate Justice (On Official Leave) MARTIN S. VILLARAMA, JR. ***
Associate Justice JOSE PORTUGAL PEREZ Associate Justice JOSE CATRAL MENDOZA Associate Justice ESTELA M. PERLAS-BERNABE Associate Justice C E R T I F I C A T I O N Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA LOURDES P. A. SERENO Chief Justice
Footnotes * On Official Business. ** On Leave . *** On Official Leave. 1 Rollo, pp. 384-399. 2 Id. at 361-365. 3 Id. at 2-15. The petition bears the docket number G.R. No. 183533. 4 Id. at 526-528. 5 Id. at 18-27. The petition was docketed as G.R. No. 181770. 6 Id. at 98-130. 7 Penned by Associate Justice Arcangelita M. Romilla-Lontok, with Associate Justices Mariano C. Del Castillo (now a Member of this Court) and Romeo F. Barza, concurring; CA rollo, pp. 180-201. 8 Id. at 195-199. 9 Rollo, pp. 2-15. 10 Id. at 361-365. 11 Id. at 363-364. 12 Id. at 384-399. 13 G.R. No. 180906, October 7, 2008, 568 SCRA 1. 14 Id. at 54. 15 Id. at 42. 16 Rollo, pp. 526-528. 17 Sec. 5. Contents of Petition. The petition shall be signed and verified and shall allege the following: (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. 18 Sec. 6. Petition. A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. 19 Razon, Jr. v. Tagitis, G.R. No. 182498, December 3, 2009, 606 SCRA 598, 702. 20 Id. at 690. 21 Supra note 13, at 55. 22 CA rollo, pp. 12-16. 23 Id. at 17-19. 24 Id. at 103. 25 Id. at 98. 26 Id. at 106-107. 27 Id. at 87. 28 Id. at 96-98. 29 TSN, April 2, 2008, pp. 37-39. 30 Miro v. Dosono, G.R. No. 170697, April 30, 2010, 619 SCRA 653, 667. 31 G.R. No. 191805, November 15, 2011. 32 Id., citing Estrada v. Desierto, G.R. Nos. 146710-15, 146738, March 2, 2001, 353 SCRA 452. 33 Lozada v. Arroyo, G.R. Nos. 184379-80, April 24, 2012. 34 Supra note 32. 35 Supra note 19.