Republic of the Philippines

PRESIDENTIAL ELECTORAL TRIBUNAL

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.