DUE PROCESS

EN BANC

[G.R. No. 144464. November 27, 2001.]

GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner, vs. THE CIVIL SERVICE
COMMISSION, respondent.

Ponciano Hernandez for petitioners.

The Solicitor General for respondent.

SYNOPSIS

Petitioners Zenaida Paitim, Municipal Treasurer of Norzagaray, Bulacan and Gilda Cruz were charged with
dishonesty, grave misconduct and conduct prejudicial to the best interest of the service after a fact-finding
investigation disclosed that Paitim impersonated Gilda Cruz in the non-professional career civil service
examinations conducted on July 30, 1989 in Quezon City. Petitioners denied the charges against them, declared
that they were electing a formal investigation on the matter and subsequently moved to dismiss on the ground of
denial of due process because the Civil Service Commission (CSC) was the complainant, the prosecutor and the
judge, all at the same time. The motion was denied. The CSC, in a resolution dated July 1, 1998, found
petitioners guilty as charged and ordered their dismissal from the government service. Petitioners elevated the
case to the Court of Appeals via a petition for review which was, however, dismissed. Their subsequent motion
for reconsideration was also denied. Hence, this recourse.
The Civil Service Commission is vested with the appellate jurisdiction in all administrative cases where the
penalty imposed is removal or dismissal from office and where the complaint was filed by a private citizen.
This appellate jurisdiction does not contemplate a case where the acts complained of was committed against the
Commission itself as when the employee committed irregularity or anomaly in the conduct of its examinations.
Factual findings of administrative bodies like the Civil Service Commission, if supported by substantial
evidence, are binding on this Court.
There is no denial of administrative due process where after being formally charged, respondents submitted
their answer and given opportunity to defend themselves.

SYLLABUS

1. ADMINISTRATIVE LAW; CIVIL SERVICE COMMISSION; APPELLATE JURISDICTION OVER ALL

ADMINISTRATIVE CASES; REFERS TO CASES FILED AGAINST EMPLOYEES IN CONNECTION
WITH THEIR DUTIES AND FUNCTIONS; DOES NOT REFER TO IRREGULARITIES OR ANOMALIES
CONNECTED TO EXAMINATIONS UNDER THE DIRECT CONTROL AND SUPERVISION OF THE
COMMISSION; CASE AT BAR. Petitioners maintain that the CSC did not have original jurisdiction to hear
and decide the administrative case. Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1,
Book V, Administrative Code of 1987, the CSC is vested with appellate jurisdiction only in all administrative
cases where the penalty imposed is removal or dismissal from the office and where the complaint was filed by a
1
private citizen against the government employee. Petitioners' invocation of the law is misplaced. The provision
is applicable to instances where administrative cases are filed against erring employees in connection with their
duties and functions of the office. This is, however, not the scenario contemplated in the case at bar. It must be
noted that the acts complained of arose from a cheating caused by the petitioners in the Civil Service
(Subprofessional) examination. The examinations were under the direct control and supervision of the Civil
Service Commission. The culprits are government employees over whom the Civil Service Commission
undeniably has jurisdiction. Thus, after the petitioners were duly investigated and ascertained whether they were
indeed guilty of dishonesty, the penalty meted was dismissal from the office. Section 28, Rule XIV of the
Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can rightfully take cognizance
over any irregularities or anomalies connected to the examinations.
2. REMEDIAL LAW; EVIDENCE; FINDINGS OF ADMINISTRATIVE BODIES SUPPORTED BY
SUBSTANTIAL EVIDENCE, BINDING ON SUPREME COURT. The fact that the complaint was filed by
the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was
based on substantial findings. Factual findings of administrative bodies, being considered experts in their field,
are binding on the Supreme Court.
3. ADMINISTRATIVE LAW; ADMINISTRATIVE DUE PROCESS; NOT DENIED WHERE PETITIONERS
WERE GIVEN OPPORTUNITY TO BE HEARD. It can not be denied that the petitioners were formally
charged after a finding that a prima facie case for dishonesty lies against them. They were properly informed of
the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners can
not, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of
the CSC to take cognizance of the case. We do not find reversible error with the decision of the Court of
Appeals in upholding the CSCResolution. DEcITS

DECISION

KAPUNAN, J p:

Assailed in the instant petition is the decision of the Court of Appeals upholding Resolution No. 981695 of the
Civil Service Commission for allegedly being contrary to law and jurisprudence.
The facts are as follows:
On September 9, 1994, the Chairperson of the Civil Service Commission (CSC), received a letter from a private
individual, Carmelita B. Esteban, claiming that, during the examinations for non-professional in the career civil
service, given by the Civil Service Commission, on July 30, 1989 in Quezon City, Zenaida C. Paitim, the
Municipal Treasurer of Norzagaray, Bulacan, falsely pretending to be the examinee, Gilda Cruz, a co-employee
in the said office, took the examinations for the latter. Carmelita Esteban requested the CSC to investigate the
matter, appending to said letter, pictures purporting to be those of Gilda Cruz and Zenaida Paitim.
On September 20, 1994, Erlinda A. Rosas, Director IV of the Commission, issued a Memorandum to Eliseo
Gatchalian, the Director of the Management Information Office of the Commission, requesting the latter to
furnish her with the picture seat plan of the room where Gilda G. Cruz was during the said examination, to
ascertain the veracity of the letter-complaint. Eliseo S. Gatchalian did furnish Erlinda Rosas with certified true
copies of the picture seat plans of the rooms where Gilda G. Cruzwas assigned not only in the 1989 but also in
the 1987 and 1988 career service (sub-professional) examinations. On November 8, 1994, Erlinda Rosas
thereby wrote a Memorandum to Civil Service Commissioner Thelma P. Gaminde, dated November 8, 1994,
declaring that based on the record, she found a prima facie case against Zenaida Paitim and Gilda G. Cruz.

2
On the basis of said memorandum, a fact finding investigation was conducted. On March 31, 1995, a "Formal
Charge" for "Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service" signed
by Bella Amilhasan, Director IV of the Civil Service Commission Regional Office No. 3 was filed against
Gilda Cruzand Zenaida C. Paitim, with the Civil Service Commission, docketed as Administrative Case No.
D3-95-052, which reads as follows:
FORMAL CHARGE
MESDAMES:
This Office has found after a fact finding investigation that a prima facie case exists against
you for DISHONESTY, GRAVE MISCONDUCT and CONDUCT PREJUDICIAL TO THE
BEST INTEREST OF THE SERVICE, committed as follows:
"That Gilda Cruz applied to take the July 30, 1989 Career Service
Subprofessional examination. A verification of our records revealed that the
picture ofCruz pasted in the Picture Seat Plan of the said examination held at
Room 21 of the Ramon Magsaysay Elementary School, Quezon City, bears no
resemblance to the pictures of Cruz as appearing in the picture seat plans of
the previous Career Service Subprofessional Examinations which she took last
July 26, 1987 and July 31, 1988 respectively. It would appear that the
purported picture of Cruz pasted in the Picture Seat Plan of the said July 30,
1989 examination is the picture of a different person. Further verification
showed that this picture belongs to a certain Zenaida Paitim, Municipal
Treasurer of Norzagaray, Bulacan who apparently took the said examination
on behalf of Cruz and on the basis of the application bearing the name and
personal circumstances of Cruz."
WHEREFORE, Gilda Cruz and Zenaida Paitim are hereby directed to answer in writing and
under oath within five (5) days from receipt hereof. To support your Answer, you may submit
supporting documents/sworn statements.
In your Answer, you should state whether you elect to have a formal investigation or waive
your right to said investigations should your Answer be found not satisfactory.
You are advised that you are entitled to the assistance of a counsel.
By Authority of the Commission:
(Sgd.) Bella A. Amilhasan
Director IV 1
The petitioners filed their Answer to the charge entering a general denial of the material averments of the
"Formal Charge." They also declared that they were electing a formal investigation on the matter. The
petitioners subsequently filed a Motion to Dismiss averring that if the investigation will continue, they will be
deprived of their right to due process because the Civil Service Commission was the complainant, the
Prosecutor and the Judge, all at the same time.
On July 17, 1995, Director Bella A. Amilhasan issued an order denying the motion. 2 The subsequent motion
for reconsideration of said order was likewise dismissed.
Dulce J. Cochon, Attorney III of the CSC was thereby directed to conduct the formal administrative
investigation of petitioners' case.

3
On November 16, 1995, Dulce J. Cochon issued an "Investigation Report and Recommendation" finding the
Petitioners guilty of "Dishonesty" and ordering their dismissal from the government service, the decretal portion
of which reads as follows:
WHEREFORE, foregoing premises considered, this Office recommends the dismissal from the
service with all its accessory penalties of respondents Zenaida Paitim and Gilda Cruz, both
employees of the Municipality of Norzagaray, Bulacan for the offenses of Dishonesty, Grave
Misconduct and Conduct Prejudicial to the Best Interest of the Service. Furthermore, this
Office recommends the filing of criminal charges against them that shall serve as a deterrent to
all possible plans of making a mockery to the sanctity of Civil Service Law and Rules as well
as the constitutional mandate that 'A public office is a public trust. (Idem. Supra.) 3

The aforesaid "Investigation Report and Recommendation" was then forwarded, to the Civil Service
Commission for its consideration and resolution.
On July 1, 1998, the Civil Service Commission issued Resolution No. 981695 finding the petitioners guilty of
the charges and ordered their dismissal from the government service. The decretal portion reads as follows:
WHEREFORE, Zenaida Paitim and Gilda Cruz are hereby found guilty of Dishonesty.
Accordingly, they are imposed the penalty of dismissal from the service with all its accessory
penalties. The Civil Service (Subprofessional) Eligibility of Gilda Cruz is also cancelled.
Let a copy of this Resolution, as well as other relevant documents, be furnished the Office of
the Ombudsman for whatever action it may take under the premises." 4
Petitioners then went up to the Court of Appeals assailing the resolution of the CSC.
On November 29, 1999, the Court of Appeals dismissed the petition before it. The motion for reconsideration
was, likewise, denied on August 9, 2000.
Hence, this petition.
In the instant petition, petitioners raised the following assignment of errors:
I
THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT
PETITIONERS' CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT VIOLATED
IN ADMINISTRATIVE CASE NO. D3-95-052 WHERE RESPONDENT COMMISSION
ACTED AS THE INVESTIGATOR, THE COMPLAINANT, THE PROSECUTOR, AND
THE JUDGE, ALL AT THE SAME TIME, AGAINST PETITIONERS. IN SO DOING,
RESPONDENT COMMISSION COMMITTED A MOCKERY OF ADMINISTRATIVE
JUSTICE AND THE COURT OF APPEALS SANCTIONED IT.
II
THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN RULING THAT
RESPONDENT COMMISSION HAS ORIGINAL JURISDICTION TO HEAR AND
DECIDE A COMPLAINT OR CHARGE WHETHER FILED BY A PRIVATE CITIZEN OR
BY THE CIVIL SERVICE COMMISSION ITSELF. THE LAW VESTS IN RESPONDENT
COMMISSION ONLY APPELLATE, NOT ORIGINAL, JURISDICTION IN ALL
ADMINISTRATIVE CASES AGAINST A PUBLIC OFFICIAL OR EMPLOYEE
INVOLVING THE IMPOSITION OF A PENALTY OF REMOVAL OR DISMISSAL FROM
OFFICE WHERE THE COMPLAINT THEREFORE WAS NOT FILED BY A PRIVATE

4
 CITIZEN AS IN ADMINISTRATIVE CASE NO. D3-95-052 OF RESPONDENT
COMMISSION. 5
We find no merit in the petition.
There is no question that petitioner Zenaida Paitim, masquerading herself as petitioner Gilda Cruz, took the civil
service examinations in her behalf. Gilda Cruz passed the examinations. On the basis of a tip-off that the two
public employees were involved in an anomalous act, the CSC conducted an investigation and verified that the
two employees were indeed guilty of dishonesty. Thus, in accordance with the CSC law, the petitioners merited
the penalty of dismissal.
Petitioners maintain that the CSC did not have original jurisdiction to hear and decide the administrative case.
Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative Code of
1987, the CSC is vested with appellate jurisdiction only in all administrative cases where the penalty imposed is
removal or dismissal from the office and where the complaint was filed by a private citizen against the
government employee. 6 It reads:
SECTION 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon
appeal all administrative disciplinary cases involving the imposition of a penalty of suspension
for more than thirty days, or a fine in an amount exceeding thirty days' salary, demotion in rank
or salary or transfer, removal or dismissal from office. Acomplaint may be filed directly with
the Commission by a private citizen against a government official or employee in which case it
may hear and decide the case or itmay deputize any department or agency or official or group
of officials to conduct the investigation. The results of the investigation shall be submitted to
the Commission with recommendation as to the penalty to be imposed or other action to be
taken. 7
(Italics supplied.)
Petitioners' invocation of the law is misplaced. The provision is applicable to instances where administrative
cases are filed against erring employees in connection with their duties and functions of the office. This is,
however, not the scenario contemplated in the case at bar. It must be noted that the acts complained of arose
from a cheating caused by the petitioners in the Civil Service (Subprofessional) examination. The examinations
were under the direct control and supervision of the Civil Service Commission. The culprits are government
employees over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the petitioners
were duly investigated and ascertained whether they were indeed guilty of dishonesty, the penalty meted was
dismissal from the office.
Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can
rightfully take cognizance over any irregularities or anomalies connected to the examinations, as it reads:
SECTION 28. The Commission shall have original disciplinary jurisdiction over all its officials
and employees and over all cases involving civil service examination anomalies or
irregularities.
Petitioners' contention that they were denied due process of law by the fact that the CSC acted as investigator,
complainant, prosecutor and judge, all at the same time against the petitioners is untenable. The CA correctly
explained that the CSC is mandated to hear and decide administrative case instituted by it or instituted before it
directly or on appeal including actions of its officers and the agencies attached to it pursuant to Book V, Title 1,
Subtitle A, Chapter 3, Section 12, paragraph 11 of the Administrative Code of 1987 which states:
(11) Hear and decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments, and review decisions and actions of its offices and of
the agencies attached to it. Officials and employees who fail to comply with such decisions,
orders, or rulings shall be liable for contempt of the Commission. Its decisions, orders, or

5
 rulings shall be final and executory. Such decisions, orders, or rulings may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a
copy thereof;
The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As
an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies,
being considered experts in their field, are binding on the Supreme Court. 8 The records clearly disclose that the
petitioners were duly investigated by the CSC and found that: AcHCED
After a careful examination of the records, the Commission finds respondents guilty as
charged.
The photograph pasted over the name Gilda Cruz in the Picture Seat Plan (PSP) during the July
30, 1989 Career Service Examination is not that of Cruz but of Paitim. Also, the signature over
the name of Gilda Cruz in the said document is totally different from the signature of
Gilda Cruz.
It should be stressed that as a matter of procedure, the room examiners assigned to supervise
the conduct of a Civil Service examination closely examine the pictures submitted and affixed
on the Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners
carefully compare the appearance of each of the examinees with the person in the picture
submitted and affixed on the PSP. In cases where the examinee does not look like the person in
the picture submitted and attached on the PSP, the examiner will not allow the said person to
take the examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa)
The facts, therefore, that Paitim's photograph was attached over the name of Gilda Cruz in the
PSP of the July 30, 1989 Career Service Examination, shows that it was Paitim who took the
examination.
In a similar case, the Commission ruled:
"It should be stressed that the registered examinee's act of asking or allowing another
person to take the examination in her behalf constitutes that the evidence on record
clearly established that another person took the Civil Service Examination for De
Guzman, she should be held liable for the said offense."
At the outset, it is axiomatic that in the offense of impersonation, two persons are always
involved. In the instant case, the offense cannot prosper without the active participation of both
Arada and de Leon. Thus, the logical conclusion is that de Leon took the examination for and
in behalf of Arada. Consequently, they are both administratively liable. (Arada, Carolina
C. and de Leon, Ponciana Anne M.) 9
It can not be denied that the petitioners were formally charged after a finding that a prima facie case for
dishonesty lies against them. They were properly informed of the charges. They submitted an Answer and were
given the opportunity to defend themselves. Petitioners can not, therefore, claim that there was a denial of due
process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. We do not find
reversible error with the decision of the Court of Appeals in upholding the CSC Resolution.
WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
||| (Cruz v. Civil Service Commission, G.R. No. 144464, [November 27, 2001], 422 PHIL 236-246)

EN BANC

6
[G.R. Nos. L-68379-81. September 22, 1986.]

EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and

ARTURO F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

SYLLABUS

1. REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT A
CASE OF. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between
the petitioner and the private respondent both of whom have gone their separate ways could be a
convenient justification for dismissing this case. But there are larger issues involved that must be resolved now,
once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest
in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic
and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest
arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but
we must also give him justice. The two are not always the same. There are times when we cannot grant the
latter because the issue has been settled and decision is no longer possible according to the law. But there are
also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved.
Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the
guidance of and as a restraint upon the future.
2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO HEAR
AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED THERETO. We
believe that in making the Commission on Elections the sole judge of all contests involving the election, returns
and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the
Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all
matters related thereto, including those arising before the proclamation of the winners.
3. ID.; ID.; "CONTEST"; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. The word "contests"
should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope
conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in
the 1973 Constitution, the term should be understood as referring to any matter involving the title or claims as
title to an elective office, made before or after proclamation of the winner, whether or not the contestant is
claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood
in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.
4. ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME SENSE
UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. The phrase "election, returns and
qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the
contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls,
including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes;
"returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the
composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to
matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his delivery or
ineligibility or the inadequacy of his certificate of candidacy.
5. ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND
DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. All
these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the
7
members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution,
could be heard and decided by it only en banc.
6. ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY
SITTING EN BANC; PURPOSE. As correctly observed by the petitioner, the purpose of Section 3 in
requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en
banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved
if the Commission could act en banc only after the proclamation had been made, for it might then be too late
already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many
unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the
real winners in the election. The respondent's theory would make this gambit possible for the pre-proclamation
proceedings, being summary in nature, could be hastily decided by only three members in division, without the
cause and deliberation that would have otherwise been observed by the Commission en banc. After that, the
delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and
not very judiciously made by the division. While in the end the protestant might be sustained, he might find
himself with only a Phyrric victory because the term of his office would have already expired.
7. ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. Another matter
deserving the highest consideration of this Court but accorded cavalier attention by the
respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which
is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground
that he was formerly a law partner of the private respondent, he obstinately insistedon participating in the case,
denying he was biased.
8. ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF DUE
PROCESS. This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge"
as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not
only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will
be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they
can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all.
They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence,
there would be no point in invoking his action for the justice they expect.
9. ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR
PLAY. Due process is intended to insure that confidence by requiring compliance with what Justice
Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where
a suitor approaches a court already committed to the other party and with a judgment already made and waiting
only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also
extra-judicial proceedings are not orchestrated plays in which the parties are supposed to make the motions and
reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will
reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the
established facts and the pertinent law.
10. ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF
DELICADEZA. The relationship of the judge with one of the parties may color the facts and distort the law
to the prejudice of a just decision. Where this is probable or even only possible, due possible, due process
demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be
above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this
well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary
vote for the questioned decision, assuming it could act, and rendered the proceedings null and void.
FELICIANO, J., concurring:

8
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION
CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC. Although
this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of
the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of
the province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in
law. J. Feliciano reaches this result on the same single, precisely drawn, ground relied upon by Melencio-
Herrera, J., that all election contests involving members of the former Batasan Pambansa must be decided by
the Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These
Sections do not distinguish between "pre-proclamation" and "post-proclamation" contests nor between "cases"
and "contests."
MELENCIO-HERRERA, J., concurring:
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER CONTESTS
INVOLVING MEMBERS OF THE BATASAN PAMBANSA. I concur in the result. The questioned
Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent,
Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the
legal reason that all election contests, without distinction as to cases or contests, involving members of the
defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3
of Article XII-C of the 1973 Constitution.

DECISION

CRUZ, J p:

The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening
events it has become moot and academic. It is not as simple as that, Several lives have been lost in connection
with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of
suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court
cannot keep silent in the face of these terrible facts. The motion is denied.
The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May
1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the
nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter
contest between the two came to a head when several followers of the petitioner were ambushed and killed,
allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these
murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the
electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the
candidate of the ruling party.
It was in this atmosphere that the voting was held, and the post-election developments were to run true to form.
Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went
to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed
and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner
thereupon came to this Court, arguing that the proclamation was void because made only by a division and not
by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his
proclamation, the private respondent took his oath as a member of the Batasang Pambansa.

9
The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down
in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the
presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the
law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one
of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos
regime and installed the present government under President Corazon C. Aquino.
The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner
and the private respondent both of whom have gone their separate ways could be a convenient
justification for dismissing this case. But there are larger issues involved that must be resolved now, once and
for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the
clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and
tolerant pretext that the case has become moot and academic.
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government.
The citizen comes to us in quest of law but we must also give him justice. The two are not always the same.
There are times when we cannot grant the latter because the issue has been settled and decision is no longer
possible according to the law. But there are also times when although the dispute has disappeared, as in this
case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of
the outraged right, though gone, but also for the guidance of and as a restraint upon the future.
It is a notorious fact decried by many people and even by the foreign press that elections during the period of
the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and
violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the
popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign
electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and
irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged
plebiscites and referenda that also elicited the decision and provoked the resentments of the people.
Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other
provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously
mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal
perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with
fear of violence at the hands of the party in power. LLjur
What made the situation especially deplorable was the apparently indifferent attitude of
the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner
complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the
Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly
and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved
the lives of the nine victims of the tragedy.
Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of
the administration. This prejudice left many opposition candidates without recourse except only to this Court.
Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner
went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent
herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation,
duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation,
snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was
made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the
petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or
manila paper.

10
On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of
canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate
until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene
and to proclaim the winner without prejudice to the outcome of the case before the Commission.
4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature,
having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5
Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter
alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6
This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M.
Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private
respondent Pacificador, Opinion had refused. 7
The petitioner then came to this Court, asking us to annul the said decision.
The core question in this case is one of jurisdiction, to wit: Was the Second Division of
the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private
respondent the winner in the election? LibLex
The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution.
Section 2 confers on the Commission on Elections the power to:
"(2) Be the sole judge of all contests relating to the election, returns and qualifications of all
member of the Batasang Pambansa and elective provincial and city officials."
Section 3 provides:
"The Commission on Elections may sit en banc or in three divisions. All election cases may be
heard and decided by divisions except contests involving members of the Batasang Pambansa,
which shall be heard and decided en banc. Unless otherwise provided by law, all election cases
shall be decided within ninety days from the date of their submission for decision."
While both invoking the above provisions, the petitioner and the respondents have arrived at opposite
conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite.
And well they might be, for the noble profession of the law despite all the canards that have been flung
against it exerts all efforts and considers all possible viewpoints in its earnest search of the truth.
The petitioner complains that the proclamation made by the Second Division is invalid because all contests
involving the members of the Batasang Pambansa come under the jurisdiction of
the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision,
considering the importance of the offices involved. The respondents, for their part, argue that only contests need
to be heard and decided en banc and all other cases can be in fact, should be filed with and decided only
by any of the three divisions.
The former Solicitor General makes much of this argument and lays a plausible distinction between the terms
"contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy
between the petitioner and the private respondent was not yet a contest at that time and therefore could be
validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at
this stage still administrative and so was resoluble by theCommission under its power to administer all laws
relative to the conduct of elections, 9 not its authority as sole judge of the election contest.

A contest, according to him, should involve a contention between the parties for the same office "in which the
contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No
proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the
11
petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang
Pambansa from Antique whose election, returns or qualifications could be examined by
the Commission on Elections en banc.
In providing that the Commission on Elections could act in division when deciding election cases, according to
this theory, the Constitution was laying down the general rule. The exception was the election contest involving
the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en
bancrequirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as
winner, for it was only then that a contest could be permitted under the law. All matters arising before such time
were, necessarily, subject to decision only by division of the Commission as these would come under the
general heading of "election cases."
As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of
the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be
heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the
proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated
otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a
pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no
contest; or to put it still another way, the Commission en banc could not do what one of its divisions was
competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of
theCommission on Elections could hear and decide, save only those involving the election, returns and
qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city
officials from start to finish, including pre-proclamation controversies and up to the election protest, In doing
so, it would exercise first administrative and then judicial powers. But in the case of the Commission en
banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any
time and on any matter before that, and always in the exercise only of judicial power.
This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division
while denying to the banc. We do not think this was the intention of the Constitution. The framers could not
have intended such an irrational rule.
We believe that in making the Commission on Elections the sole judge of all contests involving the election,
returns and qualifications of the members of the Batasang Pambansa and elective provincial and city
officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to
end and on all matters related thereto, including those arising before the proclamation of the winners. Cdpr
It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation
controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D.
No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided:
"Sec. 175. Suspension and annulment of proclamation. The Commission shall be the sole
judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be
final and executory. It may, motu proprio or upon written petition, and after due notice and
hearing order the suspension of the proclamation of a candidate-elect or annul any
proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and
174 thereof."
Before that time all proceedings affecting the election, returns and qualifications of public officers came under
the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial
power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth
Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process
into the pre-proclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for
each stage, considering the first administrative and the second judicial.

12
Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was incorporated in
the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office.
Under the Election Code of 1971, which presumably was taken into consideration when the 1973
Constitution was being drafted, election contests included the quo warranto petition that could be filed by any
voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming
the office involved. 12
The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest
possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally.
As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the
title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the
contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning
and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.
The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters
affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred
to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting
and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including
questions concerning the composition of the board of canvassers and the authenticity of the election returns; and
"qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner,
such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. LLjur
All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the
members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution,
could be heard and decided by it only en banc.
We interpret "cases" as the generic term denoting the actions that might be heard and decided by
the Commission on Elections, only by division as a general rule except where the case was a "contest" involving
members of the Batasang Pambansa, which had to be heard and decided en banc.
As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of
the Batasang Pambansa be heard and decided by theCommission en banc was to insure the most careful
consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en
banconly after the proclamation had been made, for it might then be too late already. We are all-too-familiar
with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has
resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The
respondent's theory would make this gambit possible for the pre-proclamation proceedings, being summary in
nature, could be hastily decided by only three members in division, without the care and deliberation that would
have otherwise been observed by the Commission en banc.
After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation
summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he
might find himself with only a Phyrric victory because the term of his office would have already expired.
It may be argued that in conferring the initial power to decide the pre-proclamation question upon the
division, the Constitution did not intend to prevent theCommission en banc from exercising the power
directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also
allow the division to act for it. That argument would militate against the purpose of the provision, which
precisely limited all questions affecting the election contest, as distinguished from election cases in general, to
the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other
tribunals but also and even the division of the Commission. A decision made on the contest by less than
the Commission en banc would not meet the exacting standard of care and deliberation ordained by the
Constitution.

13
Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in Section 175,
supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies
involved in Aratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and
decided en banc.
Another matter deserving the highest consideration of this Court but accorded cavalier attention by the
respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which
is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground
that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case,
denying he was biased. 14

Given the general attitude of the Commission on Elections toward the party in power at the time, and the
particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least
apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was.
Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another
division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded
protestations of innocence and proved the motives of the Second Division when it rendered its decision. cdll
This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the
indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not
only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will
be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violate d
they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him
at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such
confidence, there would be no point in invoking his action for the justice they expect.
Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls
the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor
approaches a court already committed to the other party and with a judgment already made and waiting only to
be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also
extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and
reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will
reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the
established facts and the pertinent law.
The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a
just decision. Where this is probable or even only possible, due process demands that the judge inhibit himself,
if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion,
being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For
refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it
could act, and rendered the proceeding null and void. 17
Since this case began in 1984, many significant developments have taken place, not the least significant of
which was the February revolution of "people power" that dislodged the past regime and ended well nigh
twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with
deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with
the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an
iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has
been suggested not without reason, to send the records of this case to the archives and say the case is finished
and the book is closed.
But not yet.

14
Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth
because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still
others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did
not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all exacting
obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the
sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people
against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night
of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio
B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger
than lions."
A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the
mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of
Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so
did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that
horrible crime, saying "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea
to you, 'Before I die, I would like to see justice to my son and grandsons,' May I also add that the people of
Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme
Court soon." LLpr
That was a year ago and since then a new government has taken over in the wake of the February revolution.
The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been
banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward
with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own
country, able to express his will through the pristine ballow with only his conscience as his counsel.
This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last,
after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only
then, and not until then, can we truly say that the case is finished and the book is closed.
WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have
legally rendered it moot and academic, this petition would have been granted and the decision of
the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution.
SO ORDERED.
Feria, Yap, Narvasa, Alampay and Paras, JJ ., concur.
Teehankee, C . J ., I concur and reserve the filing of a separate concurrence.
Fernan and Gutierrez, Jr., JJ ., concur in the result.

Separate Opinions

MELENCIO-HERRERA, J ., concurring:

I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated July 23, 1984,
proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of
Antique, should be set aside for the legal reason that all election contests, without any distinction as to cases or
contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en
banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution.

FELICIANO, J ., concurring:

15
I agree with the result reached, that is, although this petition has become moot and academic, the decision, dated
23 July 1984, of the Second Division of theCommission on Elections which had proclaimed Arturo F.
Pacificador as the duly elected Assemblyman of the Province of Antique must be set aside or, more accurately,
must be disregarded as bereft of any effect in law. I reach this result on the same single, precisely drawn,
ground relied upon by Melencio-Herrera, J.: that all election contests involving members of the former Batasan
Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article XII-C of
the1973 Constitution. These Sections do not distinguish between "pre-proclamation" and "post-proclamation"
contests nor between "cases" and "contests."
||| (Javier v. Commission on Elections, G.R. Nos. L-68379-81, [September 22, 1986], 228 PHIL 193-211)

THIRD DIVISION

[G.R. No. 112386. June 14, 1994.]

MARCELINO C. LIBANAN, petitioner, vs. SANDIGANBAYAN and AGUSTIN B.

DOCENA, respondents.

SYLLABUS

1. CRIMINAL LAW; REPUBLIC ACT NO. 3019; PREVENTIVE SUSPENSION; TERM "OFFICE"
CONSTRUED. In Deloso vs. Sandiganbayan, (173 SCRA 409) this Court rejected a similar argument
advanced by Governor Deloso who, at the time of issuance of the suspension order, was already occupying the
office of governor and not the position of municipal mayor that he held previously when charged with having
violated the Anti-Graft Law. Prior to Deloso, in Bayot vs. Sandiganbayan, (128 SCRA 383) the suspension of
then Cavite mayor Bayot was also sustained even as he was charged for acts committed as a government
auditor of the Commission on Audit. In both instances, this Court ruled that the term "office" used in the law
could apply to any office which the officer charged might currently be holding and not necessarily the
particular office under which he was charged.
2. ID.; ID.; ID.; NOT DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW; RATIONALE
THEREFOR. Obviously, the suspension order cannot amount to a deprivation of property without due
process of law. Public office is "a public agency or trust," and it is not the property envisioned by the
Constitutional provision which petitioner invokes.
3. ID.; ID.; ID.; LEGAL BASIS FOR SUSPENSION FROM OFFICE IN SUBSEQUENT TERM.
Petitioner's so-called "covenant" with the people of Eastern Samar is far from being synonymous to, or the
equivalent of, license, and it is not one that can cut athwart the long arm of the law. In Oliveros vs. Villaluz, (57
SCRA 163) we have said: "Since the criminal prosecution against petitioner-accused is concededly not abated
by the fact of his reelection, the pendency of such criminal case under a valid information under Republic Act
3019 may clearly be and supplies the legal basis for his suspension from office in a subsequent term in the event
of his reelection by virtue of the provisions of section 13 of the Act."
4. ID.; ID.; ID.; IMPOSITION THEREOF MANDATORY. When the statute is clear and explicit, there is
hardly room for any extended court ratiocination or rationalization of the law. Republic Act No.
3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution
against him. This Court has repeatedly held that such preventive suspension is mandatory, and there are no "ifs"
and "buts" about it.

16
RESOLUTION

VITUG, J p:

Petitioner Marcelino C, Libanan, the incumbent Vice-Governor of Eastern Samar, was a member of the
Sangguniang Panlalawigan of that province prior to the 11 May 1992 elections. He was among those charged
before the Sandiganbayan, on 25 May 1992, with having violated Section 3(e) of Republic Act No. 3019 in an
information, docketed Criminal Case No. 17756, stating
"That on or about 08 January 1991, and for sometime thereafter, in Borongan, Eastern Samar,
and within the jurisdiction of this Honorable Court, accused Lutgardo B. Barbo, Governor of
Eastern Samar; Camilo A. Camenforte, Vice-Governor of same province; Sangguniang
Panlalawigan Members Marcos B. Alido, Nonato A. Gerna, Ismael G. Kho, Marcelino
C. Libanan, Nicolas P. Pimentel, and Generoso A. Yu, of the same province, conspiring with
one another, did then and there, wilfully and unlawfully, through evident bad faith and
manifest partiality, prevent and exclude Agustin B. Docena, a duly appointed and Qualified
replacement of deceased Sangguniang Panlalawigan member Luis A. Capito, from exercising
his rights and prerogatives as a member of the said body, by promulgating in their official
capacities Sangguniang Panlalawigan Resolution No. 01, Series of 1991, wherein accused
expressed their recognition of Atty. Socrates B. Alar as the official replacement of aforesaid
deceased member, notwithstanding the recall of his appointment by the Department of Local
Government, to the damage and prejudice of Agustin B. Docena. prLL
"CONTRARY TO LAW." 1
On motion of the prosecution for the suspension of the accused public officials pendente lite, and finding that
said accused were charged under a valid information, the Second Division of the Sandiganbayan issued a
resolution, dated 26 July 1993, to the following effect:
"WHEREFORE, premises considered, accused Gov. Lutgardo Barbo, Vice-Gov. Marcelino
C. Libanan, and Sangguniang Panlalawigan members Nonato A. Gerna and Generoso A. Yu
are hereby suspended from their respective public positions, or from any other public office
that they may be holding, the same to commence upon their receipt hereof and for a period of
ninety (90) days thereafter. cdphil
"Let copies of this Resolution be furnished the Hon. Secretary, Department of Interior and
Local Government, and the Hon. Commissioner, Civil Service Commission, for their
information and guidance and they are hereby directed to inform this Court within ten (10)
days from receipt hereof of any action they have undertaken on the matter.
"SO ORDERED." 2
Accused Barbo and Libanan filed their respective motions for reconsideration, which
the Sandiganbayan denied in its resolution of 30 September 1993. From the orders, Libanan appealed.
Petitioner presents three grounds to support his appeal, to wit: That
I. THE ORDER OF SUSPENSION IF EXECUTED WOULD CONSTITUTE AN AFFRONT
ON PETITIONER('S) CONSTITUTIONAL RIGHT TO DUE PROCESS.
II. THE ORDER OF SUSPENSION ONCE IMPLEMENTED WOULD AMOUNT TO AN
ASSAULT OF THE SACRED COVENANT REPOSED ON PETITIONER VICE-
GOVERNOR, MARCELINO C. LIBANAN BY THE PEOPLE OF EASTERN
SAMAR. LibLex

17
 III. THE REASONS SOUGHT TO BE PREVENTED BY THE SUSPENSION
ORDER PENDENTE LITE NO LONGER EXIST.
The petition is without merit.
The amendatory provision of Section 13, Republic Act No. 3019, here applicable, provides:
"Sec. 13. Suspension and Loss of Benefits. Any incumbent public officer against whom any
criminal prosecution under a valid information under this Act or under title 7, book II of the
Revised Penal Code or for any offense involving fraud upon government or public funds or
property whether as a simple or as a complex offense and in whatever stage of execution and
mode of participation, is pending in court, shall be suspended from office. . . ."
Petitioner contends that the order of suspension, being predicated on his acts supposedly committed while still a
member of the Sangguniang Bayan, can no longer attach to him now that he is the duly elected and incumbent
Vice-Governor of Eastern Samar. The implementation of the suspension order, he further claims, would amount
to a deprivation of property without due process of law. Cdpr
In Deloso vs. Sandiganbayan, 3 this Court rejected a similar argument advanced by Governor Deloso who, at
the time of issuance of the suspension order, was already occupying the office of governor and not the position
of municipal mayor that he held previously when charged with having violated the Anti-Graft Law. Prior to
Deloso, in Bayot vs. Sandiganbayan, 4 the suspension of then Cavite mayor Bayot was also sustained even as
he was charged for acts committed as a government auditor of the Commission on Audit. In both instances, this
Court ruled that the term "office" used in the law could apply to any office which the officer charged might
currently be holding and not necessarily the particular office under which he was charged.
Obviously, the suspension order cannot amount to a deprivation of property without due process of law. Public
office is "a public agency or trust," 5 and it is not the property envisioned by the Constitutional
provision 6 which petitioner invokes.
Libanan's second contention neither holds water. His so-called "covenant" with the people of Eastern Samar is
far from being synonymous to, or the equivalent of, license, and it is not one that can cut athwart the long arm
of the law. In Oliveros vs. Villaluz, 7 we have said: cdll
"Since the criminal prosecution against petitioner-accused is concededly not abated by the fact
of his reelection, the pendency of such criminal case under a valid information under Republic
Act 3019 may clearly be and supplies the legal basis for his suspension from office in a
subsequent term in the event of his reelection by virtue of the provisions of Section 13 of the
Act."
The third assigned error raised by petitioner need not be delved into. When the statute is clear and explicit, there
is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No.
3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution
against him. This Court has repeatedly held that such preventive suspension is mandatory, 8 and there are no
"ifs" and "buts" about it. 9
WHEREFORE, the petition is DISMISSED. The assailed resolution of respondent Sandiganbayan is
AFFIRMED in toto. LLphil
SO ORDERED.
||| (Libanan v. Sandiganbayan, G.R. No. 112386 (Resolution), [June 14, 1994])

THIRD DIVISION

18
[G.R. No. 111397. August 12, 2002.]

HON. ALFREDO LIM and RAFAELITO GARAYBLAS, petitioners, vs.

THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO PIGALLE,
INC.,respondents.

Felix C. Chavez and Angel P. Aguirre for petitioners.

SYNOPSIS

When Mayor Lim disrupted the business operations of the New Bangkok Club and the Exotic Garden
Restaurant owned by respondent Bistro, the latter went to courtwhere its application for writ of prohibitory
preliminary injunction was granted. Despite the same, however, Mayor Lim still issued a closure order of the
establishments, even sending policemen to carry out the order.
The issue is the validity of the preliminary injunction, which the Court upheld. The power of the mayor to
suspend business licenses and work permits is expressly premised on the violation of the terms and conditions
thereof; and the power to inspect and investigate does not include the power to order a police raid on the
establishments. Further, Mayor Lim has no authority to close down a business establishment without due
process of law. The Court noted that Mayor Lim did not charge Bistro with any specific violation; that he closed
down the clubs before expiration of Bistro's business license; and that he refused to accept the license and work
applications of Bistro without examining whether it complies with the legal prerequisites. IAEcaH

SYLLABUS

1. POLITICAL LAW; ADMINISTRATIVE LAW; MAYORS; POWER TO ISSUE BUSINESS LICENSES

AND PERMITS; INCLUDES POWER TO SUSPEND, REVOKE OR REFUSE BUT ONLY IN
CASE OF VIOLATION OF CONDITIONS. The authority of mayors to issue business licenses and permits
is beyond question. The law expressly provides for such authority. And the power of the mayor to issue
business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to
issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on
the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the
condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such
licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and
permits. The mayor must observe due process in exercising these powers, which means that the mayor must
give the applicant or licensee notice and opportunity to be heard.
2. ID.; ID.; ID.; POWER TO INSPECT AND INVESTIGATE PRIVATE COMMERCIAL
ESTABLISHMENTS DOES NOT INCLUDE POWER TO ORDER POLICE RAID. True, the mayor has
the power to inspect and investigate private commercial establishments for any violation of the
conditions of their licenses and permits. However, the mayor has no power to order a police raid on these
establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond
his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant.
Such act of Lim violated Ordinance No. 7716 which expressly prohibits police raids and inspections, to wit:
"Section 1. No member of the Western Police District shall conduct inspection of food and other business
establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits,
and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly
exercised by Local Government Authorities and other concerned agencies." These local government officials

19
include the City Health Officer or his representative, pursuant to the Revised City Ordinances of the
City of Manila, and the City Treasurer pursuant to Section 470 of the Local Government Code.
3. ID.; ID.; ID.; REGULATORY POWERS OF MUNICIPAL CORPORATIONS DOES NOT INCLUDE
POWER OF MAYOR TO CLOSE DOWN A BUSINESS ESTABLISHMENT WITHOUT DUE
PROCESS OF LAW. Lim has no authority to close down Bistro's business or any business establishment in
Manila without due process of law. Limcannot take refuge under the Revised Charter of the City of Manila and
the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor
authority to close down private commercial establishments without notice and hearing, and even if there is, such
provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro
an opportunity to rebut the allegations that it violated the conditions of its licenses and permits. The regulatory
powers granted to municipal corporations must always be exercised in accordance with law, with utmost
observance of the rights of the people to due process and equal protection of the law. Such power cannot be
exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lim's exercise of this power
violated Bistro's property rights that are protected under the due process clause of the Constitution. Lim did not
charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed
down Bistro's operations even before the expiration of its business license on December 31, 1992. Lim also
refused to accept Bistro's license application for 1993, in effect denying the application without examining
whether it complies with legal prerequisites.
4. REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; PURPOSE. The sole
objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be
heard fully. It is generally availed of to prevent actual or threatened acts, until the merits of the case can be
disposed of. In the instant case, the issuance of the writ of prohibitory preliminary injunction did not
dispose of the main case for mandamus. The trial court issued the injunction in viewof the disruptions and
stoppage in Bistro's operations as a consequence of Lim's closure orders. The injunction was intended to
maintain the status quo while the petition has not been resolved on the merits. EHcaAI

DECISION

CARPIO, J p:

The Case
Before us is a petition for review on certiorari 1 of the Decision of the Court of Appeals dated March 25,
1993, 2 and its Resolution dated July 13, 1993 3 which denied petitioners' motion for reconsideration. The
assailed Decision sustained the orders dated December 29, 1992, January 20, 1993 and March 2, 1993, 4 issued
by Branch 36 of the Regional Trial Court of Manila. The trial court's orders enjoined petitioner
Alfredo Lim ("Lim" for brevity), then Mayor of Manila, from investigating, impeding or closing down the
business operations of the New Bangkok Club and the Exotic Garden Restaurant owned by respondent Bistro
Pigalle Inc. ("Bistro" for brevity).
The Antecedent Facts
On December 7, 1992 Bistro filed before the trial court a petition 5 for mandamus and prohibition, with prayer
for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as Mayor of the
City of Manila. Bistro filed the case because policemen under Lim's instructions inspected and investigated
Bistro's license as well as the work permits and health certificates of its staff. This caused the stoppage of work
in Bistro's night club and restaurant operations. 6 Lim also refused to accept Bistro's application for a business
license, as well as the work permit applications of Bistro's staff, for the year 1993. 7

20
In its petition, Bistro argued that Lim's refusal to issue the business license and work permits violated the
doctrine laid down this Court in De la Cruz vs. Paras, 8 to wit:
"Municipal corporations cannot prohibit the operation of nightclubs. They may be regulated,
but not prevented from carrying on their business."
Acting on Bistro's application for injunctive relief, the trial court issued the first assailed temporary restraining
order on December 29, 1992, the dispositive portion ofwhich reads:
"WHEREFORE, respondent and/or his agents and representatives are ordered to refrain from
inspecting or otherwise interfering in the operation of the establishmentsof petitioner (Bistro
Pigalle, Inc.)." 9
At the hearing, the parties submitted their evidence in support of their respective positions. On January 20,
1993, the trial court granted Bistro's application for a writ ofprohibitory preliminary injunction. The dispositive
portion of the trial court's order declared:
"WHEREFORE, in view of all the foregoing, Petitioners' application for a writ of prohibitory
preliminary injunction is granted, and Respondent, and any/all persons acting under his
authority, are and (sic) ordered to cease and desist from inspecting, investigating and otherwise
closing or impeding the business operations of Petitioner Corporation's establishments while
the petition here is pending resolution on the merits.
Considering that the Respondent is a government official and this injunction relates to his
official duties, the posting of an injunction bond by the Petitioners is not required.
On the other hand, Petitioners' application for a writ of mandatory injunction is hereby denied,
for to grant the same would amount to granting the writ of mandamus prayed for.
The Court reserves resolution thereof until the parties shall have been heard on the merits." 10
However, despite the trial court's order, Lim still issued a closure order on Bistro's operations effective January
23, 1993, even sending policemen to carry out his closure order. ESHAIC
On January 25, 1993, Bistro filed an "Urgent Motion for Contempt" against Lim and the policemen who
stopped Bistro's operations on January 23, 1993. At the hearingof the motion for contempt on January 29, 1993,
Bistro withdrew its motion on condition that Lim would respect the court's injunction.
However, on February 12, 13, 15, 26 and 27, and on March 1 and 2, 1993, Lim, acting through his agents and
policemen, again disrupted Bistro's business operations.

Meanwhile, on February 17, 1993, Lim filed a motion to dissolve the injunctive order of January 20, 1993 and
to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments
and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits
and licenses. This statutory power is expressly provided for in Section 11 (1), Article II of the Revised
Charter of the City of Manila and in Section 455, paragraph 3 (iv) ofthe Local Government Code of 1991.
The trial court denied Lim's motion to dissolve the injunction and to dismiss the case in an order dated March 2,
1993, the dispositive portion of which stated:
"WHEREFORE, premises considered, the Court hereby orders:
(1) The denial of respondent's motion to dissolve the writ of preliminary prohibitory injunction
or the dismissal of the instant case;
(2) Petitioner-corporation is authorized to remove the wooden cross-bars or any other
impediments which were placed at its establishments, namely, New Bangkok Club and Exotic
21
 Garden Restaurant on February 12, 1993 and February 15, 1993, respectively, and thereafter
said establishments are allowed to resume their operations;
(3) All the other petitioners are allowed to continue working in the aforenamed
establishments of petitioner-corporation if they have not yet reported; and
(4) The hearing on the contempt proceedings is deferred to give sufficient time to respondent to
elevate the matters assailed herein to the Supreme Court." 11
On March 10, 1993, Lim filed with the Court of Appeals a petition for certiorari, prohibition
and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave
abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction.
On March 25, 1993, the Court of Appeals rendered the assailed decision. 12 In a resolution dated July 13, 1993,
the Court of Appeals denied Lim's motion for reconsideration. 13
On July 1, 1993, Manila City Ordinance No. 7783 14 took effect. On the same day, Lim ordered the Western
Police District Command to permanently close down the operations of Bistro, which order the police
implemented at once. 15
The Ruling of the Court of Appeals
In denying Lim's petition, the Court of Appeals held that the trial court did not commit grave abuse of discretion
since it issued the writ after hearing on the basis of the evidence adduced.
The Court of Appeals reasoned thus:
" . . . A writ of preliminary injunction may issue if the act sought to be enjoined will cause
irreparable injury to the movant or destroy the status quo before a full hearing can be had on
the merits of the case.
A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to
by a litigant to protect or preserve his rights or interests and for no other purpose during the
pendency of the principal action. It is primarily intended to maintain the status quo between the
parties existing prior to the filing of the case.
In the case at bar, We find that the respondent Judge did not act improvidently in issuing the
assailed orders granting the writ of preliminary injunction in order to maintain the status quo,
while the petition is pending resolution on the merits. The private respondent correctly points
out that the questioned writ was regularly issued after several hearings, in which the parties
were allowed to adduce evidence, and argue their respective positions.
The issuance of a writ of preliminary injunction is within the limits of the sound
exercise of discretion of the court and the appellate court will not interfere, except, in a clear
case of abuse thereof. . .
WHEREFORE, the petition is DENIED DUE COURSE and is accordingly DISMISSED." 16
Hence, this petition.
The Issues
In their Memorandum, petitioners raise the following issues:
1. "DID RESPONDENT JUDGE COMMIT GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING HIS SAID
ASSAILED ORDERS OFDECEMBER 29, 1992, JANUARY 20, 1993 AND MARCH
2, 1993?"

22
 2. "DID RESPONDENT COURT OF APPEALS COMMIT REVERSIBLE ERRORS IN
RENDERING ITS ASSAILED DECISION OF MARCH 25, 1993 AND ITS
ASSAILED RESOLUTION OF JULY 13, 1993?"
3. "DID SAID CIVIL CASE NO. 92-63712 AND SAID CA-G.R. SP NO. 30381 BECOME
MOOT AND ACADEMIC WHEN THE NEW BANGKOK CLUB AND THE
EXOTIC GARDEN RESTAURANT OF PRIVATE RESPONDENT WERE CLOSED
ON JULY 1, 1993 PURSUANT TO ORDINANCE NO. 7783?"
The Ruling of the Court
The petition is without merit.
Considering that the constitutionality of Ordinance No. 7783 was not raised before the trial court or
the Court of Appeals, and this issue is still under litigation in another case, 17 the Court will deal only with the
first two issues raised by petitioner.
Validity of the Preliminary Injunction
Bistro's cause of action in the mandamus and prohibition proceedings before the trial court is the violation of its
property right under its license to operate. The violation consists of the work disruption in Bistro's operations
caused by Lim and his subordinates as well as Lim's refusal to issue a business license to Bistro and work
permits to its staff for the year 1993. The primary relief prayed for by Bistro is the
issuance of writs of mandatory and prohibitory injunction. The mandatory injunction seeks to compel Lim to
accept Bistro's 1993 business license application and to issue Bistro's business license. Also, the mandatory
injunction seeks to compel Lim to accept the applications of Bistro's staff for work permits. The
writ of prohibitory injunction seeks to enjoin Lim from interfering, impeding or otherwise closing down Bistro's
operations.
The trial court granted only the prohibitory injunction. This enjoined Lim from interfering, impeding or
otherwise closing down Bistro's operations pending resolution ofwhether Lim can validly refuse to issue
Bistro's business license and its staffs work permits for the year 1993.
Lim contends that the Court of Appeals erred in upholding the prohibitory injunction. Lim relies primarily on
his power, as Mayor of the City of Manila, to grant and refuse municipal licenses and business permits as
expressly provided for in the Local Government Code and the Revised Charter of the
City of Manila. Lim argues that the powers granted by these laws implicitly include the power to inspect,
investigate and close down Bistro's operations for violation of the conditions of its licenses and permits.
On the other hand, Bistro asserts that the legal provisions relied upon by Lim do not apply to the instant case.
Bistro maintains that the Local Government Code and the Revised Charter of the City of Manila do not
expressly or impliedly grant Lim any power to prohibit the operation of night clubs. Lim failed to specify any
violation by Bistro of the conditions of its licenses and permits. In refusing to accept Bistro's business license
application for the year 1993, Bistro claims that Lim denied Bistro due process of law.
The Court of Appeals held that the trial court did not commit grave abuse of discretion in issuing the
prohibitory preliminary injunction.
We uphold the findings of the Court of Appeals.
The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides
for such authority. Section 11 (1), Article II of the Revised Charter of the City of Manila, reads:
"Sec. 11. General duties and powers of the mayor. The general duties and powers of the mayor
shall be:
xxx xxx xxx

23
 (1) To grant and refuse municipal licenses or permits of all classes and to revoke the same for
violation of the conditions upon which they were granted, or if acts prohibited by law or
municipal ordinances are being committed under the protection of such licenses or in the
premises in which the business for which the same have been granted is carried on, or for any
other reason of general interest." (Italics supplied)
On the other hand, Section 455 (3) (iv) of the Local Government Code provides:
"Sec. 455. Chief Executive, Powers, Duties and Compensation: . . .
(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the City and its inhabitants pursuant to Section 16 of this Code, the City Mayor
shall:
(3) . . .
(iv) Issue licenses and permits and suspend or revoke the same for any
violation of the condition upon which said licenses or permits had been issued,
pursuant to law or ordinance." (Italics supplied)
From the language of the two laws, it is clear that the power of the mayor to issue business licenses and permits
necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the
power to suspend or revoke these licenses and permits is expressly premised on the violation of the
conditionsof these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on
which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is
premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor
must observe due process in exercising these powers, which means that the mayor must give the applicant or
licensee notice and opportunity to be heard.
True, the mayor has the power to inspect and investigate private commercial establishments for any
violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid
on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted
beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden
Restaurant. Such act of Lim violated Ordinance No. 7716 18 which expressly prohibits police raids and
inspections, to wit:
"Section 1. No member of the Western Police District shall conduct inspection of food and
other business establishments for the purpose of enforcing sanitary rules and regulations,
inspecting licenses and permits, and/or enforcing internal revenue and customs laws and
regulations. This responsibility should be properly exercised by Local Government Authorities
and other concerned agencies." (Italics supplied)

These local government officials include the City Health Officer or his representative, pursuant to the Revised
City Ordinances of the City of Manila, 19 and the City Treasurer pursuant to Section 470 of the Local
Government Code. 20
Lim has no authority to close down Bistro's business or any business establishment in Manila without due
process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local
Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to
close down private commercial establishments without notice and hearing, and even if there is, such provision
would be void. The due process clause of the Constitution requires that Lim should have given Bistro an
opportunity to rebut the allegations that it violated the conditions of its licenses and permits.

24
The regulatory powers granted to municipal corporations must always be exercised in accordance with law,
with utmost observance of the rights of the people to due process and equal protection of the law. 21 Such
power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lim's
exercise of this power violated Bistro's property rights that are protected under the due process clause of the
Constitution.
Lim did not charge Bistro with any specific violation of the conditions of its business license or permits.
Still, Lim closed down Bistro's operations even before the expiration of its business license on December 31,
1992. Lim also refused to accept Bistro's license application for 1993, in effect denying the application without
examining whether it complies with legal prerequisites.
Lim's zeal in his campaign against prostitution is commendable. The presumption is that he acted in good faith
and was motivated by his concern for his constituents when he implemented his campaign against prostitution
in the Ermita-Malate area. However, there is no excusing Lim for arbitrarily closing down, without due
processof law, the business operations of Bistro. For this reason, the trial court properly restrained the
acts of Lim.
Consequently, the Court of Appeals did not err in upholding the trial court's orders. The sole objective of a
writ of preliminary injunction is to preserve the status quountil the merits of the case can be heard fully. It is
generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of. 22 In the
instant case, the issuance of the writ of prohibitory preliminary injunction did not dispose of the main case
for mandamus. The trial court issued the injunction in viewof the disruptions and stoppage in Bistro's operations
as a consequence of Lim's closure orders. The injunction was intended to maintain the status quo while the
petition has not been resolved on the merits.
WHEREFORE, the petition is denied for lack of merit. The assailed Decision of the Court of Appeals in CA-
G.R. SP No. 30381 is AFFIRMED in toto.
SO ORDERED.
||| (Lim v. Court of Appeals, G.R. No. 111397, [August 12, 2002], 435 PHIL 857-869)

THIRD DIVISION

[A.M. No. RTJ-02-1674. January 22, 2004.]

BAILINANG P. MAROHOMBSAR, complainant, vs. JUDGE SANTOS

B. ADIONG, respondent.

RESOLUTION

CORONA, J p:

This is a complaint filed against Judge Santos B. Adiong of the Regional Trial Court, Branch 8, Marawi City,
Lanao del Sur, charging him with gross ignorance of law, abuse of discretion and conduct unbecoming of a
judge in connection with his issuance of a temporary restraining order (TRO) and a preliminary restraining
order in Civil Case No. 1670-99, entitled Ms. Yasmira N. Pangadapun vs. Ms. Bailinang P. Marohombsar.
After respondent filed his comment, we issued a resolution on February 6, 2000 referring the case to Associate
Justice Eugenio S. Labitoria of the Court of Appeals for investigation, report and recommendation.
25
Complainant Marohombsar was the defendant in Civil Case No. 1670-99 for "injunction with prayer for
preliminary injunction." The case was filed on March 17, 1999 by Yasmira Pangadapun, daughter of Judge
Yusoph Pangadapun of RTC Branch 10, Marawi City. In the said complaint, Pangadapun questioned the
legality ofMarohombsar's appointment by DSWD Regional Secretary Salic-Malna as provincial social welfare
officer V of the Department of Social Welfare and Development Autonomous Region for Muslim Mindanao
(DSWD-ARMM). Prior to Marohombsar's appointment, Pangadapun used to occupy said position as officer-in-
charge.
Upon the filing of the said complaint, respondent judge issued a TRO and set the hearing on the application for
the issuance of a writ of preliminary injunction on April 6, 1999. Summons, together with a copy of the
complaint and a notice indicating that a preliminary conference would be held on March 22, 1999, was also
served on both parties.
On March 18, 1999, Marohombsar filed an ex parte urgent motion to dissolve the TRO. Pangadapun was given
until March 26, 1999 to comment and, pending the filing of the same, the TRO was extended up to said date.
On March 22, 1999, respondent issued an order stating that a preliminary conference had been held and that
both parties had waived the raffle of the case. He reset the hearing on the application for the issuance of a writ
of preliminary injunction from April 6, 1999 to April 5, 1999 at 2:00 p.m.
On March 29, 1999, respondent gave Pangadapun up to April 5, 1999 to file her comment and again, the TRO
was extended to that date.
During the hearing on the application for the issuance of a writ of preliminary injunction on April 5, 1999, none
of the lawyers appeared. Hence, respondent considered it submitted for resolution and issued the preliminary
injunction the following day.
In his partial Comment dated November 13, 2000, respondent denied that: (1) he issued the TRO in favor of
Pangadapun without benefit of a hearing; (2) in his order dated March 22, 1999, he made it appear that a
preliminary conference was held where the parties agreed to waive the raffle of the case, when in fact there was
none; (3) he falsified the records of the case and (4) he granted the preliminary injunction without a hearing. He
alleged that the complaint was purely a harassment case filed by a disgruntled party because of the latter's
failure to obtain a favorable resolution from him. Although respondent judge admitted that Judge Yusoph
Pangadapun and Judge Abdulhakim Ibrahim were his distant relatives and townmates, he stressed that "never in
our careers in the judiciary have we interfered nor influenced one another on any pending case before our
courts."
During the preliminary hearing of the complaint on April 18, 2002 before Justice Labitoria, the parties agreed to
have the case decided based on the pleadings presented.
Respondent submitted the following additional evidence and exhibits to strengthen his case:
a) partial Comment on the Complainant's Affidavit-Complaint;
b) 2nd Indorsement dated December 11, 2000 in OCA IPI No. 00929-RTJ executed by Judge
Abdulhakim A.R. Ibrahim showing that the complainant likewise filed an
administrative case against him involving the same parties and cause of action, and
c) Supreme Court resolution dated September 11, 2001 dismissing the administrative case
against Judge Ibrahim.
On the other hand, complainant filed her "comment/objection to respondent's formal offer of exhibits" on the
ground that all the documents were irrelevant and immaterial to the instant case.
In his final report and recommendation, Justice Labitoria recommended that respondent judge be absolved of all
the charges against him.

26
We find the recommendation of Justice Labitoria to be supported by the evidence and we approve the same.
A TRO is generally granted without notice to the opposite party and is intended only as a restraint on him until
the propriety of granting a temporary injunction can be determined. It goes no further than to preserve the status
quo until that determination. 1
Respondent judge was justified in issuing the TRO ex parte due to his assessment of the urgency of the relief
sought. Rule 58, Section 5 of the 1997 Rules of Civil Procedure provides:
Preliminary injunction not granted without notice; exception. No preliminary injunction
shall be granted without hearing and prior notice to the party or person sought to be enjoined.
If it shall appear from facts shown by affidavits or by the verified application that great or
irreparable injury would result to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was made, may issue a temporary
restraining order to be effective only for a period of twenty (20) days from service on the party
or person sought to be enjoined, except as herein provided. Within the said twenty-day period,
the court must order said party or person to show cause, at a specified time and place, why the
injunction should not be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the corresponding order.
However, and subject to the provisions of the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge
of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a
temporary restraining order effective for only seventy-two (72) hours from issuance but he
shall immediately comply with provisions of the next preceding section as to service of
summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-
two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to
determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days, including the original seventy-two (72)
hours provided therein.
Complainant also contends that respondent issued an order dated March 22, 1999 making it appear that a
preliminary conference was held and the parties agreed to waive the raffle of the case when, in truth and in fact,
no conference was held.
We are not persuaded. The order of March. 22, 1999 stated in part:
In the preliminary conference scheduled this morning, counsels of both parties jointly agreed to
waive the raffling of the case and for this court to continue further proceedings considering that
the plaintiff is the daughter of Hon. Yusoph Pangadapun, Presiding Judge of RTC-Branch 10
and per manifestation of Atty. Tingcap Mortaba, counsel for the plaintiff, should the case be
raffled to Branch 9, the Presiding Judge, Hon. Amer R. Ibrahim will voluntarily inhibit himself
from hearing the case.
In the summary hearing that followed for the purpose of determining whether the TRO
previously issued on March 17, 1999 shall be extended or not, the counsels is (sic) submitting
the same for resolution on the basis of the pleading.
We note that complainant did not dispute the order of respondent judge immediately after its issuance. Hence,
the presumption was that the order in question was proper and well taken.
Complainant likewise insists that respondent judge tampered with the records of the case, as shown by its
inconsistent pagination.
We agree with the finding of Justice Labitoria who accepted respondent judge's explanation that:
27
 Resolutions or orders are dictated either in open Court or inside the chamber. The attending
stenographers type the same in a draft form and then presented to me for proper correction or
modification before finally typing them for my signature.
Because of the many number of cases calendared daily and other related works being attended
to, all this paper works take a little time to finish until finally attach (sic) to the records of the
cases. This explains the little delay sometimes in sewing or attaching some orders or other
Court processes to the records. All of this is always under the strict and direct supervision of
the Branch Clerk of Court.
In the same investigation report, Justice Labitoria went on to say:
Besides, complainant merely assumes that respondent judge doctored the records to favor
plaintiff. Her mind was already set that it would be impossible for the staff or respondent judge
not to commit any error in sewing the records. However, as human beings all of us are prone to
commit some mistakes. As what happened in the instant case. Thus, a mere suspicion that a
judge was partial to party is not enough as there should be adequate evidence to prove the
charge.
Finally, complainant's assertion that she was denied due process because the preliminary injunction was issued
without hearing is likewise untenable.
In applications for preliminary injunction, the dual requirement of prior notice and hearing before injunction
may issue has been relaxed to the point that not all petitions for preliminary injunction need undergo a trial-type
hearing, it being doctrinal that a formal or trial-type hearing is not, at all times and in all instances, essential to
due process. 2 The essence of due process is that a party is afforded a reasonable opportunity to be heard and to
present any evidence he may have in support of his defense. In the present case, complainant was able to move
for a reconsideration of the order in question, hence her right to due process was not in anyway transgressed.
We have ruled that a party cannot claim that he has been denied due process when he has availed of the
opportunity to present his position. 3

Even assuming for the sake of argument that respondent judge erred in ordering the issuance of the writ of
preliminary injunction, we ruled in Equatorial Realty vs. Anunciacion, Jr. 4 that, as a matter of public policy,
the acts of a judge in his official capacity are not subject to disciplinary action even though such acts are
erroneous, provided he acts in good faith and without malice. Respondent judge, or any other member of the
bench for that matter, is presumed to have acted regularly and in the manner that preserves the ideal of the cold
neutrality of an impartial judge implicit in the guarantee of due process. 5
WHEREFORE, the administrative complaint against Judge Santos B. Adiong is hereby DISMISSED for lack of
merit. aHTDAc
SO ORDERED.
||| (Marohombsar v. Adiong, A.M. No. RTJ-02-1674, [January 22, 2004], 465 PHIL 599-607)
EN BANC

[G.R. No. 148571. September 24, 2002]

28
GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department
of Justice, petitioner, vs. Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge,
Regional Trial Court of Manila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN
CRESPO, respondents.

DECISION
PANGANIBAN, J.:

In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for
their arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while
the extradition proceedings are pending? In general, the answer to these two novel questions is
No. The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the
Orders dated May 23, 2001[1] and July 3, 2001[2] issued by the Regional Trial Court (RTC) of Manila, Branch
42.[3] The first assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest of
Respondent Mark B. Jimenez.
The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time
granted bail to Jimenez. The dispositive portion of the Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark
Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into
consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable
amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be
paid in cash.

Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of
Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure
List.[4]

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking
of Jimenez into legal custody.

The Facts

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion.[5]
Pursuant to the existing RP-US Extradition Treaty, [6] the United States Government, through diplomatic
channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by
Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of
Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary
of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to
Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law.

29
 Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining
Order (TRO) by the RTC of Manila, Branch 25.[7] The TRO prohibited the Department of Justice (DOJ) from
filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in
a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the
Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting
papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. [8]
Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000
Resolution.[9] By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and
reversed its earlier Decision. It held that private respondent was bereft of the right to notice and hearing during
the evaluation stage of the extradition process. This Resolution has become final and executory.
Finding no more legal obstacle, the Government of the United States of America, represented by the
Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was
docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an
arrest warrant issued by the United States District Court for the Southern District of Florida on April 15,
1999. The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-
SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US
Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of
Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and
2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and
Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an
order for his immediate arrest pursuant to Section 6 of PD No. 1069.
Before the RTC could act on the Petition, Respondent Jimenez filed before it an Urgent Manifestation/Ex-
Parte Motion,[10] which prayed that petitioners application for an arrest warrant be set for hearing.
In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on
June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court
allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest.
After the hearing, the court a quo required the parties to submit their respective memoranda. In his
Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post
bail in the amount of P100,000.
The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below
issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at one million pesos in cash. [11] After he had surrendered his passport and posted the required
cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. [12]
Hence, this Petition.[13]

Issues

Petitioner presents the following issues for the consideration of this Court:
I.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an
arrest warrant under Section 6 of PD No. 1069.

II.
30
The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty
because:

1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power.

2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail)
of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in
extradition proceedings.

3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.

4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail
is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special
circumstances.

5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no
evidence of special circumstances which may justify release on bail.

6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded
belief that he will not flee.

7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines
with its obligations under the RP-US Extradition Treaty.

8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez et
al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589, relied upon by the public
respondent in granting bail, had been recalled before the issuance of the subject bail orders.[14]

In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice
and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional
liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of
the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to
seek relief in the Court of Appeals (CA), instead of in this Court. [15] We shall also preliminarily discuss five
extradition postulates that will guide us in disposing of the substantive issues.

The Courts Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition
Court: (1) the issues were fully considered by such court after requiring the parties to submit their respective
memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no
useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the
31
need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to
escape and avoid extradition; and (4) the issues raised are purely of law. [16]
For resorting directly to this Court instead of the CA, petitioner submits the following reasons: (1) even if
the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and
decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once
and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of
Appeals had in one case[17] ruled on the issue by disallowing bail but the court below refused to recognize the
decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there
are pending issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the
decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential
extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the
Philippines to comply with its obligations under existing extradition treaties. [18]
As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has
been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though,
has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in
case of urgency.[19] As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration
before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as
those that have already been squarely argued and exhaustively passed upon by the lower court. [20] Aside from
being of this nature, the issues in the present case also involve pure questions of law that are of public
interest. Hence, a motion for reconsideration may be dispensed with.
Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari
when there are special and important reasons therefor. [21] In Fortich v. Corona[22]we stated:

[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it
if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial
policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et.
al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated
in Cuaresma:

x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly and specifically set out in the petition. This
is established policy. x x x.

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest
of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which,
as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem
created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition
first with the Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our
jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals:[23]

Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than
promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules
and excepted a particular case from their operation whenever the higher interests of justice so require. In the
instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the
parties involved and proceed directly to the merits of the case.

32
 In a number of other exceptional cases,[24] we held as follows:

This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals,
over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct
resort to us in cases where special and important reasons or exceptional and compelling circumstances justify
the same.

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings,
we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression
over which there is, as yet, no local jurisprudence to guide lower courts.
Five Postulates of Extradition
The substantive issues raised in this case require an interpretation or construction of the treaty and the law
on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its
intent.[25] Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the
Philippines is a signatory,[26] understanding certain postulates of extradition will aid us in properly deciding the
issues raised here.
1. Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing crime [27] by facilitating the arrest
and the custodial transfer[28] of a fugitive[29] from one state to the other.
With the advent of easier and faster means of international travel, the flight of affluent criminals from one
country to another for the purpose of committing crime and evading prosecution has become more
frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that
transcend international boundaries.
Today, a majority of nations in the world community have come to look upon extradition as the major
effective instrument of international co-operation in the suppression of crime.[30] It is the only regular system
that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with
municipal and international law.[31]

An important practical effect x x x of the recognition of the principle that criminals should be restored to a
jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be
reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role
in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition
arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in
the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of
extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus
indirectly does the commission of crime itself. [32]

In Secretary v. Lantion[33] we explained:

The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the
extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are
becoming the concern of one world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal
whose activities threaten the peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially
transnational crimes.

33
 Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other
states in order to improve our chances of suppressing crime in our own country.
2. The Requesting State Will Accord Due Process to the Accused
Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and
trust, each others legal system and judicial process. [34] More pointedly, our duly authorized representatives
signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state
to protect the basic rights of the person sought to be extradited. [35] That signature signifies our full faith that the
accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal
proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis
Third, as pointed out in Secretary of Justice v. Lantion,[36] extradition proceedings are not criminal in
nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui
generis -- in a class by itself -- they are not.

An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not
involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the
court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x.

xxxxxxxxx

There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a
prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered
final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the
final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations
before making the ultimate decision to extradite.

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the
innocence of the person sought to be extradited. [37] Such determination during the extradition proceedings will
only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance
through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to
try that person. It is not part of the function of the assisting authorities to enter into questions that are the
prerogative of that jurisdiction.[38] The ultimate purpose of extradition proceedings in court is only to determine
whether the extradition request complies with the Extradition Treaty, and whether the person sought is
extraditable.[39]
4. Compliance Shall Be in Good Faith.
Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our
legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the
national interest.

34
 Fulfilling our obligations under the Extradition Treaty promotes comity[40]with the requesting state. On the
other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world
community. Such failure would discourage other states from entering into treaties with us, particularly an
extradition treaty that hinges on reciprocity.[41]
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the
Treaty.[42] This principle requires that we deliver the accused to the requesting country if the conditions
precedent to extradition, as set forth in the Treaty, are satisfied. In other words, [t]he demanding government,
when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the
issue of the proper warrant, and the other government is under obligation to make the
surrender.[43] Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be
found proper.
5. There Is an Underlying Risk of Flight
Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds
reinforcement in the experience[44] of the executive branch: nothing short of confinement can ensure that the
accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting
state.
The present extradition case further validates the premise that persons sought to be extradited have a
propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit
to trial in the requesting country.[45] Prior acts of herein respondent -- (1) leaving the requesting state right
before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite
learning that the requesting state is seeking his return and that the crimes he is charged with are bailable --
eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid
them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has
demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given
sufficient opportunity, from fleeing a second time?

First Substantive Issue:

Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?

Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice,
that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him
notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous
precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may
invoke it in future extradition cases.
On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of
his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or
rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has
been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:

SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of
the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest
of the accused which may be served any where within the Philippines if it appears to the presiding judge
that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon
35
receipt of the answer, or should the accused after having received the summons fail to answer within the time
fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon
the accused and the attorney having charge of the case. (Emphasis ours)

Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a
warrant of arrest? We rule in the negative.
1. On the Basis of the Extradition Law
It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify
the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of
the arrest warrant. Hearing entails sending notices to the opposing parties,[46] receiving facts and
arguments[47] from them,[48] and giving them time to prepare and present such facts and arguments. Arrest
subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a
mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the
determination of whether a warrant of arrest should be issued.
By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such
early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual
situation, immediately upon the filing of the petition. From the knowledge and the material then available to it,
the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy
initial determination as regards the arrest and detention of the accused.
Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the
following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in
the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H
to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the
Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged
in the Indictment); (3) Annex BB, the Exhibit I Appendix of Witness [excerpts] Statements Referenced in the
Affidavit of Angela Byers and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J Table of
Contents for Supplemental Evidentiary Appendix with enclosed Exhibits 121 to 132; and (5) Annex MM, the
Exhibit L Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward and
enclosed Statements in two volumes.[49]
It is evident that respondent judge could have already gotten an impression from these records adequate for
him to make an initial determination of whether the accused was someone who should immediately be arrested
in order to best serve the ends of justice. He could have determined whether such facts and circumstances
existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima
facie meritorious. In point of fact, he actually concluded from these supporting documents that probable
cause did exist.In the second questioned Order, he stated:

In the instant petition, the documents sent by the US Government in support of [its] request for extradition of
herein respondent are enough to convince the Court of the existence of probable cause to proceed with the
hearing against the extraditee.[50]

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing
an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having
already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon motion of Jimenez. [51]
Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the
accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the
36
word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been
intended, the law could have easily so provided. It also bears emphasizing at this point that extradition
proceedings are summary[52]in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings.

It is taken for granted that the contracting parties intend something reasonable and something not inconsistent
with generally recognized principles of International Law, nor with previous treaty obligations towards third
States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the
unreasonable, the more reasonable to the less reasonable x x x . [53]

Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their
arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute
an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both
would have been defeated by the escape of the accused from the requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or
a hearing before the issuance of a warrant of arrest. It provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants of arrest.
In Ho v. People[54] and in all the cases cited therein, never was a judge required to go to the extent of
conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant
of arrest. All we required was that the judge must have sufficient supporting documents upon which to make his
independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause.[55]
In Webb v. De Leon,[56] the Court categorically stated that a judge was not supposed to conduct a hearing
before issuing a warrant of arrest:

Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not
the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence.

At most, in cases of clear insufficiency of evidence on record, judges merely further

examine complainants and their witnesses.[57] In the present case, validating the act of respondent judge and
instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the
rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence
during the prima facie determination for the issuance of a warrant of arrest, what would stop him from
presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie
finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the
entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the
summary nature of extraditions.
37
 That the case under consideration is an extradition and not a criminal action is not sufficient to justify the
adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a
more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition
to flee.
Since this is a matter of first impression, we deem it wise to restate the proper procedure:
Upon receipt of a petition for extradition and its supporting documents, the judge must study them and
make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they
show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his
discretion, the judge may require the submission of further documentation or may personally examine the
affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding[58] is
possible, the petition may be dismissed at the discretion of the judge.
On the other hand, if the presence of a prima facie case is determined, then the magistrate must
immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the
petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not
inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity
to escape and frustrate the proceedings. In our opinion, the foregoing procedure will best serve the ends of
justice in extradition cases.

Second Substantive Issue:

Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:

Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall not be required.

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail
of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged
with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the
relevance to the present case of Section 4 [59] of Rule 114 of the Rules of Court which, insofar as practicable and
consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD
1069.
On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the
right to bail to a person who is the subject of an extradition request and arrest warrant.
Extradition Different from Ordinary Criminal Proceedings
We agree with petitioner. As suggested by the use of the word conviction, the constitutional provision on
bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings,
because extradition courts do not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt. [60] It follows that the constitutional provision on bail will
not apply to a case like extradition, where the presumption of innocence is not at issue.

38
 The provision in the Constitution stating that the right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended does not detract from the rule that the constitutional right to bail is
available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas
corpus finds application only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion.[61] Hence, the second sentence in the constitutional provision on bail merely
emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean
that the right is available even in extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an
argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from
the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal
cases against him, not before the extradition court.
No Violation of Due Process
Respondent Jimenez cites the foreign case Paretti[62] in arguing that, constitutionally,
[n]o one shall be deprived of x x x liberty x x x without due process of law.
Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not
amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process
is the opportunity to be heard[63] but, at the same time, point out that the doctrine does not always call for
a prior opportunity to be heard.[64] Where the circumstances -- such as those present in an extradition case -- call
for it, a subsequent opportunity to be heard is enough.[65] In the present case, respondent will be given full
opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there
is no violation of his right to due process and fundamental fairness.
Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his
liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1)
the DOJs filing in court the Petition with its supporting documents after a determination that the extradition
request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima
facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his
arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-
initial-bail rule.
It is also worth noting that before the US government requested the extradition of respondent, proceedings
had already been conducted in that country. But because he left the jurisdiction of the requesting state before
those proceedings could be completed, it was hindered from continuing with the due processes prescribed under
its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the
requesting state; yet, instead of taking it, he ran away.
In this light, would it be proper and just for the government to increase the risk of violating its treaty
obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve
the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had
previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in
cooperating with the world community in the suppression of crime. Indeed, [c]onstitutional liberties do not exist
in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and
palpable government interests.[66]
Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of
facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase
the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons
sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in
the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings,
adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives
from coming to the Philippines to hide from or evade their prosecutors.
39
 The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article
[67]
14 of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting
state to cut short their detention here. Likewise, their detention pending the resolution of extradition
proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of
extradition cases and the need for their speedy disposition.

Exceptions to the No Bail Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion[68] and tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights.[69] Furthermore, we believe that the right to due process is broad
enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the life,
liberty or property of every person. It is dynamic and resilient, adaptable to every situation calling for its
application.[70]
Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee
has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception,
only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a
danger to the community; and (2) that there exist special, humanitarian and compelling
circumstances[71] including, as a matter of reciprocity, those cited by the highest court in the requesting state
when it grants provisional liberty in extradition cases therein.
Since this exception has no express or specific statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an
executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its
barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial
prerogative.Hence, any intrusion by the courts into the exercise of this power should be characterized by
caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or
compromised. In short, while this Court is ever protective of the sporting idea of fair play, it also recognizes the
limits of its own prerogatives and the need to fulfill international obligations.
Along this line, Jimenez contends that there are special circumstances that are compelling enough for the
Court to grant his request for provisional release on bail. We have carefully examined these circumstances and
shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000
residents. We are not persuaded. In People v. Jalosjos,[72] the Court has already debunked the
disenfranchisement argument when it ruled thus:

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the
limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters
elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any
time, he may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

40
The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply
means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities
imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither
partiality nor prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same
class as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly [from] prison. The duties imposed by the mandate of the people are multifarious.The accused-
appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant
is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to function well in the physical absence of one or a
few of its members. Depending on the exigency of Government that has to be addressed, the President or the
Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on
the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A
doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor
has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a
particular duty lifted a prisoner into a different classification from those others who are validly restrained by
law.

A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made
in favor of or against groups or types of individuals.

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise
of government authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to all those belonging to the same class. [73]

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was
already of public knowledge that the United States was requesting his extradition. Hence, his constituents were
or should have been prepared for the consequences of the extradition case against their representative, including
his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are
constrained to rule against his claim that his election to public office is by itself a compelling reason to grant
him bail.
2. Anticipated Delay
Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be
unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that
extradition cases are summary in nature. They are resorted to merely to determine whether the extradition
petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a
rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action.
We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is
quite another matter that is not at issue here. Thus, any further discussion of this point would be merely
anticipatory and academic.
41
 However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of
bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail
would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch
out and unreasonably delay the extradition proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the
extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the
preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee
as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching
closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his
ground and still be within reach of our government if and when it matters; that is, upon the resolution of the
Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the
applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the
present case, the extradition court may continue hearing evidence on the application for bail, which may be
granted in accordance with the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a
cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity
both by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. As
already stated, the RTC set for hearing not only petitioners application for an arrest warrant, but also private
respondents prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then
position papers on the application for bail, both of which were separately filed by the parties.
This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and
the Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not
normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been
submitted, the parties -- particularly the potential extraditee -- have bombarded this Court with additional
pleadings -- entitled Manifestations by both parties and Counter-Manifestation by private respondent -- in which
the main topic was Mr. Jimenezs plea for bail.
A remand would mean that this long, tedious process would be repeated in its entirety. The trial court
would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings
and verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is
absolutely no need to rehear factual matters.Indeed, the inadequacy lies not in the factual presentation of Mr.
Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion
and strength in his legal reasoning.
In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting
Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed
upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further
delay these already very delayed proceedings,[74] which our Extradition Law requires to be summary in
character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is
needed is a firm decision on the merits, not a circuitous cop-out.
Then, there is also the suggestion that this Court is allegedly disregarding basic freedoms when a case is
one of extradition. We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its

42
length and breath, this Decision has taken special cognizance of the rights to due process and fundamental
fairness of potential extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten points:
1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the
petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition,
complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings
are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally
escaped -- back to its territory, so that the criminal process may proceed therein.
2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability
or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of
the latter to grant basic rights to the accused in the pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence
is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the
accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the
requesting state, the reasonable prima facie presumption is that the person would escape again if given the
opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall
make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the
Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to
require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If
convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential
extraditee and summons him or her to answer and to appear at scheduled hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a
history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the
community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the
highest court in the requesting state for the grant of bail therein may be considered, under the principle of
reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial
discretion in the context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process
does not always call for a prior opportunity to be heard. A subsequentopportunity is sufficient due to the flight
risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard
and to enjoy fundamental fairness that is compatible with the summary nature of extradition.
7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy
and the conscience of society. But it is also well aware of the limitations of its authority and of the need for
respect for the prerogatives of the other co-equal and co-independent organs of government.
8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power of implementation.
9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or
excise grave abuse and tyranny. They should not allow contortions, delays and over-due process every little step

43
of the way, lest these summary extradition proceedings become not only inutile but also sources of international
embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a
fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can
unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and
international cooperation.
10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine
compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to
avoid the legalistic contortions, delays and technicalities that may negate that purpose.
WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby
declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted
bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional
Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed
pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition
Law. No costs.
SO ORDERED.

EN BANC

[G.R. Nos. 156399-400. June 27, 2008.]

VICTOR JOSE TAN UY, petitioner, vs. OFFICE OF THE OMBUDSMAN,

PEOPLE OF THE PHILIPPINES, SANDIGANBAYAN (SPECIAL DIVISION), CARLOS
S. CAACBAY OF THE NATIONAL BUREAU OF INVESTIGATION, ROMEO T.
CAPULONG, LEONARD DE VERA, AND DENNIS B. FUNA, respondents.

DECISION

BRION, J p:

We resolve in this Decision the petition filed by petitioner Victor Jose Tan Uy (the "petitioner") under Rule
65 of the Revised Rules of Court to assail the interrelated Orders dated 13 September 2002 1 and 16 October
2002 2 of the respondent Office of the Ombudsman (the "Ombudsman") in OMB-0-00-1720 3 and OMB-0-00-
1756 4for grave abuse of discretion and/or lack or excess of jurisdiction. IcAaEH
THE ANTECEDENTS
The Ombudsman filed on 4 April 2001 with the Sandiganbayan an Information 5 charging former President
Joseph Ejercito Estrada, together with Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda
T. Ricaforte, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
John Does and Jane Does, with the crime of Plunder, defined and penalized under Republic Act (R.A.) No.
7080, as amended by Section 12 of R.A. No. 7659. The Ombudsman moved to amend the Information twice
initially, to introduce changes in the Information (including a change in the appellation of the accused Eleuterio
Tan, Eleuterio Ramos Tan or Mr. Uy to John Doe a.k.a. as Eleuterio Tan or Eleuterio Ramos Tan or
Mr. Uy), and thereafter, to include Jaime C. Dichaves as accused; theSandiganbayan
granted the motions. 6 The pertinent portions of the Amended Information 7 read:

44
That during the period from June, 1998 to January, 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public
officer, being then the president of the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his family, relatives by
affinity or consanguinity, business associates, subordinates and/or other persons, by taking
undue advantage of his official position, authority, relationship, connection or influence, did
then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself,
directly or indirectly, ill-gotten wealth in the aggregate amount or total value of Four Billion
Ninety-seven Million Eight Hundred Four Thousand One Hundred Seventy-three Pesos and
Seventeen Centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or
themselves at the expense and to the damage of the Pilipino people
and the Republicof the Philippines, through any or a combination or a series of overt or
criminal acts, or similar schemes or means, described as follows:
(a) by receiving or collecting, directly or indirectly, on several instances, money
in the aggregate amount of Five Hundred Forty-five Million Pesos (P545,000,000.00),
more or less, from illegal gambling in the form of gift, share, percentage, kickback or
any form of pecuniary benefit, by himself and/or in connivance with co-accused Charlie
'Atong' Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte and Edward Serapio and John
Does and Jane Does, in consideration oftoleration or protection of illegal
gambling; ACSaHc
(b) by diverting, receiving, misappropriating, converting OR misusing directly, or
indirectly for his or their personal gain and benefit, public funds in theamount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing
a portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco excise tax
share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro,
John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe
a.k.a. Delia Rajas AND OTHER JOHN DOES AND JANE DOES; [underscores
supplied ]
(c) by directing, ordering and compelling, for his personal gain and
benefit, the Government Service Insurance System (GSIS) to purchase 351,878,000
sharesof stocks, more or less, and the Social Security System (SSS) 329,855,000
shares of stocks, more or less, of the Belle Corporation in the amount of more or less
One Billion One Hundred Two Million Nine Hundred Sixty-five Thousand Six
Hundred Seven Pesos and Fifty Centavos (P1,102,965,607.50) and more or less Seven
Hundred Forty-four Million Six Hundred Twelve Thousand and Four Hundred Fifty
Pesos (P744,612,450.00), respectively or a total of more or less One Billion Eight
Hundred Forty-seven Million Five Hundred Seventy-eight Thousand Fifty-seven Pesos
and Fifty Centavos (P1,847,578,057.50); and by collecting or receiving, directly or
indirectly, by himself and/or in connivance with Jaime Dichaves, John Does and Jane
Does, commissions or percentages by reason of said purchases ofshares of stock
in the amount of One Hundred Eighty-nine Million Seven Hundred Thousand Pesos
(P189,700,000.00) more or less, from the Belle Corporation which became
part of the deposit in the Equitable-PCI Bank under the account name "Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts, shares, percentages,
kickbacks, or any form of pecuniary benefits, in connivance with Jaime C. Dichaves,
John Does and Jane Does in the amount of more or less, Three Billion Two Hundred
Thirty-three Million One Hundred Four Thousand One Hundred Seventy-three Pesos

45
 and Seventeen Centavos (P3,233,104,173.17) and depositing the same under his
account name "Jose Velarde" at the Equitable-PCI Bank. ECTIcS
CONTRARY TO LAW.
The case, which originated from OMB-0-00-1720 (entitled National Bureau of Investigation v. Luis "Chavit"
Singson, et. al.) and OMB-0-00-1756 (entitled Romeo T. Capulong, et. al., v. Joseph Ejercito Estrada, et. al.),
was docketed in the Sandiganbayan as Criminal (Crim.) Case No. 26558.
In the course of the proceedings, the Ombudsman filed before the Sandiganbayan an Omnibus Motion dated 8
January 2002 8 seeking, among others, the issuance ofa warrant of arrest against Victor Jose
Tan Uy alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. The Ombudsman alleged that no warrant of arrest
had been issued against the accused John Doe who was designated in the Information as Eleuterio Tan,
Eleuterio Ramos Tan or Mr. Uy; and that, in order not to frustrate the ends ofjustice, a warrant of arrest should
issue against him after he had been identified to be also using the name Victor Jose Tan Uy with address at
2041 M. J. Cuenco Avenue, Cebu City. Allegedly, a positive identification had been made through photographs,
as early as the Senate Impeachment Trial against former President Joseph Ejercito Estrada, that John Doe
a.k.a. Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy and VICTOR JOSE TAN UY are one and the same person.
To support this motion, the Ombudsman attached: (1) copies of the photographs identified at the Senate
Impeachment Trial; and (2) the Sworn Statement of Ma. Caridad Manahan-Rodenas (the "Rodenas Sworn
Statement") dated 26 June 2001 executed before Atty. Maria Oliva Elena A. Roxas of the Fact Finding and
Intelligence Bureau of the Office of the Ombudsman ("FFIB"). [For purposes of this Decision, these are
collectively referred to as the "identification documents." ]
The Ombudsman further filed a Manifestation and Motion dated 5 March 2002 9 asking for the manual
insertion in the Amended Information of the name VICTOR JOSE TAN UY; it relied on Section 7, Article
110 of the Revised Rules of Criminal Procedure, which provides:
SEC. 7. Name of the accused. The complaint or information must state the name and
surname of the accused or any appellation or nickname by which he has been or is known. If
his name cannot be ascertained, he must be described under a fictitious name with a statement
that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner
to the court, such true name shall be inserted in the complaint or information and record.
The petitioner's response was a Petition to Conduct Preliminary Investigation 10 filed
with the Ombudsman. The petitioner argued that: (1) he was not subjected to a preliminary investigation
or to any previous inquiry to determine the existence of probable cause against him
for the crime of plunder or any other offense, as: (a) he was not included as respondent in
either of the two Ombudsman cases bases of the criminal proceeding; (b) neither his name nor his
address at No. 2041 M.J. Cuenco Avenue, Cebu City was mentioned at any stage of the preliminary
investigation conducted in the criminal cases; (c) thepreliminary investigation in the cases that led
to the filing of Crim. Case No. 26558 was conducted without notice to him and without his participation;
(d) he was not served any subpoena, whether at his address at No. 2041 M.J. Cuenco Avenue, Cebu City
or at any other address, for the purpose of informing him ofany complaint against him for plunder or
any other offense and for the purpose of directing him to file his counter-affidavit; and (2)
dictates of basic fairness and due process of law require that petitioner be given the opportunity to avail
himself of the right to a preliminary investigation since the offense involved is non-bailable in
character. aHTcDA
The petitioner additionally alleged that he filed a complaint with the Regional Trial Court of Cebu City
docketed as CEB-25990 against a certain Eleuterio Tan for maligning him by using his picture, address, and
other personal circumstances without his consent or authority, which acts led to his alleged involvement
46
in the tobacco excise tax scandal. 11 He also claimed that he personally visited then Senate President Aquilino
Pimentel at the height of the impeachment trial to dispute his identification as Eleuterio Tan; he then expressed
his willingness to testify before the Impeachment Court and subsequently wrote Senator Pimentel a letter about
these concerns. 12 He claimed further that he submitted the signatures appearing on the signature cards
supposedly signed by Eleuterio Tan and the two (2) company identification cards supposedly presented
by the person who opened the Land Bank account for examination by a handwriting
expert; the result of the handwriting examination disclosed that the signatures were not his. 13

In a parallel Manifestation and Motion 14 dated 11 April 2002 filed with the Sandiganbayan, the petitioner
asked for the suspension of the criminal proceedings insofar as he is concerned; he likewise moved for a
preliminary investigation. DacTEH
The Ombudsman opposed 15 the petitioner's Manifestation and Motion with a refutation of the petitioner's
various claims. Among others, it claimed that it served, in thepreliminary investigation it
conducted, the subpoena at the purported address of Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy at
Bagbaguin, Valenzuela City as indicated in the complaint-affidavits. It posited that it was the petitioner's fault
that his true name was not ascertained, the petitioner having made clever moves to make it difficult to identify
him with his nefarious deeds. It also argued that the petitioner could not ask for any affirmative relief
from the Sandiganbayan which had not acquired jurisdiction over the petitioner's person.
The petitioner reiterated in his Reply to Opposition 16 (filed with the Sandiganbayan) the points he raised
before the Ombudsman. He additionally stressed that: (1) thefundamental issue is whether or not a preliminary
investigation was conducted with respect to him; as the records show, he was never subjected to any
preliminary investigation; (2) he was never given by the prosecution the opportunity to prove in any preliminary
investigation that he is not Eleuterio Tan; had he been given such opportunity, petitioner would have shown that
he wasted no time and took immediate steps to establish his innocence shortly after the illegal use and
submission of his photo and usurpation of his identity surfaced at the impeachment proceedings; (3) he timely
invoked his right to a preliminary investigation, as motions or petitions forthe conduct of preliminary
investigation may be entertained by the Sandiganbayan even before the movant or petitioner is brought under its
jurisdiction under the rule that any objection to a warrant of arrest or procedure in the acquisition
by the court of jurisdiction over the person of the accused must be made before plea; (4)
whilethe invalidity of the preliminary investigation does not affect the jurisdiction of the Sandiganbayan, it
should however suspend the proceedings and remand the case forthe holding of a proper preliminary
investigation; and (5) a preliminary investigation is imperative because the offense involved is non-
bailable. DTAaCE
The Ombudsman denied in an Order dated 10 May 2002 17 the petition for the conduct of a preliminary
investigation. It rejected the petitioner's claims, reasoning out that the petitioner's requested preliminary
investigation had long been terminated and the resulting case had already been filed with the Sandiganbayan in
accordance with the Rules of Criminal Procedure; hence, the petitioner's remedy is to ventilate the issues
with the Sandiganbayan.
The Sandiganbayan, on the other hand, granted in a Resolution dated 19 June 2002 18 the petitioner's motion
and directed the Ombudsman to conduct a preliminary investigation with respect to the petitioner. It also held in
abeyance until after the conclusion of this preliminary investigation action on the Ombudsman's motion
to amend the Information to insert the petitioner's name and to issue a warrant for his arrest.
In compliance with the Sandiganbayan Resolution, the Ombudsman issued an Order 19 requiring the petitioner
to file his counter-affidavit, the affidavits of his witnesses, and other supporting documents. Attached
to the Ombudsman's Order were the Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-
0-00-1720. The petitioner filed his counter-affidavit, 20 pertinent portions of which read: CSIDEc

47
 2. With respect to the Complaint-Affidavit in OMB-0001720, it may be noted that the same
was originally filed with the Department of Justice as I.S. No. 2000-1829, with the National
Bureau of Investigation as complainant and the following as respondents, namely: (1) Luis
'Chavit' Singson, (2) Deogracias Victor B. Savellano, (3) Carolyn M. Pilar, (4) Antonio A.
Gundran, (5) Dr. Ernie A. Mendoza II, Ph. D., (6) Leonila Tadena, (7) Estrella Mercurio, (8)
Dionisia Pizarro, (9) Cornelio Almazan, (10) Erlita Q. Arce, (11) Maricar Paz, (12) Marina
Atendido, (13) Nuccio Saverio, (14) Alma Aligato Alfaro, (15) Eleuterio Tan or Eleuterio
Ramos Tan, and (16) Delia Rajas. (I.S. No. 2000-1829 was thereafter referred
to the Office of the Ombudsman as per the 1st indorsement of Secretary Artemio G. Tuquero
dated 14 December 2000).
2.1. As may easily be gleaned from the documents served upon me with the 08 August 2002
Order, I am not among the respondents named or included in eitherI.S. No. 2000-
1829 or OMB-0-00-1720. Neither has there been any mention of my name in the Complaint-
Letter dated 14 November 2000 of Carlos Caacbay, Deputy Director for Special Investigation
Services or in any of its supporting documents. DACTSa
2.2. Neither has any allegation been made in the Complaint-Letter dated 14 November
2000 of Carlos S. Caacbay, Deputy Director for Special Investigation Services, or in any of its
supporting documents that I have been identified as being among the named respondents
therein.
2.3. Moreover, there has been no allegation linking me to any criminal act for
any of the offenses charged or any other criminal offense.
3. With respect to the Complaint-Affidavit in OMB-0-00-1756 filed by Romeo T. Capulong,
Leonard de Vera and Dennis B. Funa, the only respondents named are: (1) (former) President
Joseph E. Estrada, (2) (former) First Lady Luisa Estrada, (3) Jinggoy Estrada, (4) Charlie Ang,
(5) Delia Rajas, (6) Eleuterio Tan, and (7) Alma Alfaro.
3.1. As may easily be gleaned from the documents served upon me with the 08 August 2002
Order, I am not among the respondents named or included in OMB-0-00-1756. Neither has
there been any mention of my name in the Complaint-Affidavit dated 28 November 2000 or in
any of its supporting documents marked Annexes 'A-1' to 'A-5' (consisting of 523 pages, more
or less, of the transcripts of stenographic notes of Gov. Luis Singson's testimony
before the Senate Blue Ribbon Committee and the Senate Committee on Justice) and Annex 'B'
(the 25 September 2000 Affidavit of Gov. Luis Singson). aCcEHS
3.2 Neither has any allegation been made in the Complaint-Affidavit dated 28 November 2000
nor any of its supporting documents that I have been identified as being among the named
respondents therein.
3.3. Moreover, there has been no allegation linking me to any criminal act for
any of the offenses charged or any other criminal offense.
4. In view of the foregoing, it is submitted that the instant cases ought to be dismissed with
respect to me, there being no factual allegation or basis in the instant cases to warrant any
further action thereon. The instant cases should thus be dismissed outright for want of palpable
merit.
The Ombudsman thereafter issued an order requiring the attendance of Rodenas and the petitioner in a
clarificatory hearing. 21 The petitioner filed aManifestation and Motion, 22 arguing that
considering the thrust of his counter-affidavit, there is no need for a hearing because there is nothing that would
require clarification as to matters stated in his counter-affidavit and there is also no point for a clarificatory
hearing on the complaints-affidavits given the patent want ofprobable cause as against him. The petitioner did
48
not personally attend the clarificatory hearing. Rodenas did not also show up. The petitioner then filed a Motion
to Resolve 23 the case. DaEcTC
At this point, the Ombudsman issued the first of the orders assailed in the present petition; it found probable
cause to charge the petitioner before the Sandiganbayan.The basis for the finding runs:
It has to be emphasized that during the investigation conducted by the Fact-Finding and
Intelligence Bureau (FFIB), this Office, and referred to on page
2 ofthe Resolution of the Sandiganbayan dated June 19, 2002, granting the motion for
preliminary investigation of respondent Victor Jose Tan Uy, Ma. Caridad Manahan-
Rodenas of the Land Bank of the Philippines identified the picture bearing the name
Victor Jose Tan Uy as Eleuterio Tan who presented to her two identification cards (IDs),
which were found to exactly match the picture of the said respondent with his LTO
license. Verily, the identification made by Rodenas based on pertinent documents which
respondent presented when he opened the account at Land Bank remains credible, and
that Victor Jose TanUy was the same person who appeared and introduced himself as
Eleuterio Tan or Eleuterio Ramos Tan to Ma. Caridad A. Manahan-Rodenas of the Land
Bank, thereby establishing his true identity. It is therefore, clear that the person mentioned
in OMB-0-00-1720 and OMB-0-00-1756, during the preliminary investigation thereof, as
Eleuterio Tan or Eleuterio Ramos Tan is no other than Victor Jose Tan Uy. [underscoring
supplied] cHDEaC
Further, a perusal of the allegations in respondent's counter-affidavit [sic] the same has not
proffered any material evidence to contradict the allegations that Eleuterio Tan or Eleuterio
Ramos Tan refers to Victor Jose Tan Uy as one and the same person. What are contained
in the counter-affidavit are mere general denials without defenses on why respondent is distinct
and different from Eleuterio Tan. In all likelihood, respondent used the name of Eleuterio Tan
or Eleuterio Ramos Tan in making his transaction with Land Bank to hide his real identity.
Notwithstanding the concealment, there were available pieces of evidence unearthing
respondent's true identity thus, arriving to the firm conclusion that Eleuterio Tan or Eleuterio
Ramos Tan is the same person as herein respondent Victor Jose Tan Uy. 24
The petitioner moved to reconsider the Ombudsman's Order, 25 but the latter denied the motion in the second
order assailed in this petition. 26 The second assailed order in part reads:

After an assiduous evaluation of the grounds and arguments raised by the movant in his
motion, we find no cogent reason to disturb the resolution and order finding probable cause to
indict respondent Victor Jose Tan Uy. TAHCEc
xxx xxx xxx
It has to be emphasized that the fact of identifying Victor Jose Tan Uy as one and the same
person as Eleuterio Tan or Eleuterio Ramos Tan by Landbank employee, Ma. Caridad
Rodenas, has already formed part of the preliminary investigation conducted
by the Office of the Ombudsman. In the said preliminary investigation, Victor Jose
Tan Uy was ordered to appear in a clarificatory conference to confront Rodenas. But Uy did
not appear. Instead, his counsel submitted a manifestation to dispense withthe clarificatory
hearing and submit the case for resolution. The scheduled conference could have provided
opportunity for Victor Jose Tan Uy to dispute the findings that Eleuterio Tan or Eleuterio
Ramos Tan is one and the same person. Instead, per information and admission of counsel,
accused Victor Jose Tan Uy was in the United States. As to the exact date of departure, counsel

49
 refused to divulge. The skill and cleverness of accused in playing hide and seek is putting a
heavy toll in the proper administration of justice.
Further, Victor Jose Tan Uy did not submit any evidence, documentary or otherwise, that
would lead the Office of the Ombudsman to believe that Victor Jose Tan Uy is different from
Eleuterio Tan or Eleuterio Ramos Tan. aTADCE
Moreover, previously before the Honorable Court, the accused-movant, through counsel, was
already confronted with pieces of evidence. He was identified through an I.D. with computer-
generated photograph marked as Exhibit "J" by previous prosecution witnesses: Jemis Singson,
Atty. David Yap and Ilonor Madrid as the same person Victor Jose Tan Uy.
Due process cannot be compartmentalized. The court proceedings participated in
by the accused-movant form part and parcel of such due process, in the same manner
that the further preliminary investigation is inseparable from the said court
proceedings. [emphasis supplied]
Finally, if only to highlight the redundant opportunity given to the accused-movant to
controvert the pieces of evidence against him, in the hearing on the "Motion to Expunge and
Opposition" last 9 October 2002, the accused-movant's counsel was directly confronted
with the same ID that identified his client as the very same person using the pseudonym
Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. However, again the accused-movant through
counsel literally refused to admit or deny if theperson depicted in the I.D. is his client Victor
Jose Tan Uy. This indicates the futility of pursuing another round of such repetitious
opportunity to controvert the said evidence. cSTHAC
THE PETITION AND THE PARTIES' SUBMISSIONS
Faced with the Ombudsman's rulings, the petitioner filed the present petition based on grounds that are
rehashes of the issues already ventilated below. For clarity, thepetitioner alleged grave abuse of discretion
in the Ombudsman's finding of probable cause on the grounds that:
(a) he was not among the respondents named or included in either OMB-0-00-1720 or OMB-0-00-1756;
neither has there been any mention of his name in therespective complaint-affidavits or in any of their
supporting documents; neither has any allegation been made in the respective complaint-affidavits or in
any of their supporting documents that he had been identified as being among the named respondents; and there
has been no allegation linking him to any criminal act for any ofthe offenses charged or any other criminal
offense; and
(b) the Ombudsman relied on evidence and findings that were never part of the complaints-affidavits or their
supporting documents served upon the petitioner and were never adduced or presented
in the course of the preliminary investigation conducted with respect to the petitioner. STIcaE
The petitioner's supporting arguments essentially center on the irregularity of the Sandiganbayan-ordered
preliminary investigation and the worth and efficacy of theevidence the complainants presented with respect to
his identification as Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. He
questions the regularity of the preliminary investigation for having been attended by shortcuts and for being a
sham proceeding that violates his right to due process. Specifically, he claims that the duty of theOmbudsman is
to determine the existence of probable cause based on the evidence presented, not to fill
up the deficiencies of the complaint, nor to remedy its weaknesses. He objects to the use of the FFIB
investigation results to support the finding of probable cause since these investigation results were never
presented atthe preliminary investigation of OMB-0-00-1720 and OMB-0-00-1756, and reliance thereon
violates his due process rights. He adds that the FFIB was never a complainant heard in either of these cases. He
emphasizes that the Rodenas sworn statement in the FFIB investigation identifying him as Eleuterio Tan is a
mere scrapof paper that does not constitute evidence in the preliminary investigation since it was never
50
presented therein, and that the burden of proving at the preliminary investigation that he is Eleuterio Tan rests
with the complainants. ScHAIT
The Ombudsman counters all these with the position that the first preliminary investigation, conducted prior
to the filing of the Sandiganbayan charges, was conducted fully in accordance with the rules and thus carried no
infirmities. Specifically, the order for the petitioner to file his counter- and supporting affidavits was regular
because it was issued in his assumed names and was sent to the addresses stated in the complaint as required
by the procedural rules on preliminary investigations.
The respondent posits further that the issue of the validity of the first preliminary investigation with respect
to the petitioner has been rendered academic by thesubsequent reinvestigation that the Sandiganbayan ordered.
At this subsequent investigation, the complaint-affidavits were duly furnished the petitioner who merely alleged
general denials in the counter-affidavit he filed. The petitioner failed to attend the clarificatory hearing where he
could have controverted the identification made by Rodenas in the FFIB investigation; he likewise had at least
seven opportunities in the totality of the proceedings to controvert his identification as Eleuterio Tan,27 but
failed to avail himself of any of these opportunities. These opportunities were: TCDcSE
First, when he received copies of the identification documents attached to the Ombudman's Omnibus Motion
(dated 8 January 2002) and Manifestation and Motion (dated 5 March 2002), he then filed his petition to
conduct a preliminary investigation with the Ombudsman;
Second, when he filed his Manifestation and Motion (dated 11 April 2002) with the Sandiganbayan wherein he
refused to directly controvert the identification issues, although he quoted the Ombudsman's previous motions;
Third, when the petitioner filed his "Reply to Opposition" to the Ombudsman's "Manifestation and Motion"
with the Sandiganbayan, his averments therein were in thenature of denials that met head on the positive
identification made by Rodenas; thus, the identification issues were joined and it then became the petitioner's
duty to confront the evidence of identification;
Fourth, when the Sandiganbayan ordered the preliminary investigation, this proceeding presented an
opportunity to confront the identification documents, but he did not;
Fifth, when a clarificatory hearing was called during the Sandiganbayan-ordered preliminary
investigation, the hearing presented another opportunity, but thepetitioner's counsel filed a manifestation that his
client did not wish to participate; CTHDcS
Sixth, when the petitioner filed his motion for reconsideration of the first assailed order in the present petition,
he could have controverted the identification documentstherein, but he did not; and
Seventh, at the hearing of an incident before the Sandiganbayan, when the petitioner's counsel was asked
whether the man in the photograph shown him was his client, he refused to answer the question although he
could have simply denied it.
The respondent Ombudsman further argues that fault can be imputed only to the petitioner who demands equity
but has not come to Court with clean hands; through various machinations and by his own fault, he has avoided
confronting the evidence of his identification. The Ombudsman stresses finally that its factual
finding of theexistence of probable cause against the petitioner has full basis in evidence and, being factual,
should be accorded respect, if not finality. cCaEDA
OUR RULING
We find the petition impressed with merit.
We clarify at the outset that the present petition is filed under Section 1, Rule 65 of the Revised Rules of Court
whose scope of review is limited to the question: was theorder by the tribunal, board or officer exercising
judicial or quasi judicial functions rendered without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack of or excess of jurisdiction? The "grave abuse of discretion" that the petitioner alleges in this
51
case is defined by jurisprudence to be a "capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or
personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law." 28
At the core of the present controversy is the regularity, in the context of accepted standards of due
process, of the Ombudsman's conduct of the Sandiganbayan-ordered preliminary investigation. The petition
must fail if the Ombudsman complied with the basic requirements of due process and the prevailing rules and
jurisprudence on preliminary investigation. HDITCS

A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty,
malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as
from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to
conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a
component of due process in administering criminal justice. The right to have a preliminary investigation
conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a
mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary
investigation is to deprive him of the full measure of his right to due process. 29
Thus, as in a court proceeding (albeit with appropriate adjustments because it is essentially still an
administrative proceeding in which the prosecutor or investigating officer is a quasi-judicial officer
by the nature of his functions), a preliminary investigation is subject to the requirements of both substantive and
procedural due process. This view may be less strict in its formulation than what we held in Cojuangco, Jr. v.
PCGG, et al. 30 when we said: AcSIDE
It must be undertaken in accordance with the procedure provided in Section 3, Rule
112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order to
assure that a person undergoing such preliminary investigation will be afforded due process.
xxx xxx xxx
Although such a preliminary investigation is not a trial and is not intended to
usurp the function of the trial court, it is not a casual affair. The officer conducting thesame
investigates or inquires into the facts concerning the commission of the crime with the end in
view of determining whether or not an information may be prepared against the accused.
Indeed, a preliminary investigation is in effect a realistic judicial
appraisal of the merits of the case. Sufficient proof of the guilt of theaccused must be adduced
so that when the case is tried, the trial court may not be bound as a matter of law to order an
acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial
proceeding. An act becomes judicial when there is opportunity to be heard and
for the production and weighing of evidence, and a decision is rendered thereon. 31
but we commonly recognize the need for the observance of due process. We likewise fully agree
with Cojuangco in terms of the level of scrutiny that must be made we do not expect the rigorous
standards of a criminal trial, but "[s]ufficient proof of the guilt of the accused must be adduced so that
when the case is tried, thetrial court may not be bound as a matter of law to order an acquittal." TcCDIS
In light of the due process requirement, the standards that at the very least assume great materiality and
significance are those enunciated in the leading case of Ang Tibay v. Court of Industrial Relations. 32 This
case instructively tells us in defining the basic due process safeguards in administrative proceedings
that thedecision (by an administrative body) must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected; only by confining the administrative
tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and
52
meetthe case against them; it should not, however, detract from the tribunal's duty to actively see that the law
is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing
itself of facts material and relevant to the controversy. 33
Mindful of these considerations, we hold that the petitioner's right to due process has been violated. ECSHAD
We firstly note that the question of the petitioner's entitlement to a preliminary investigation apart
from the earlier preliminary investigation conducted by theOmbudsman in OMB-0-00-1720 and OMB-0-00-
1756 has been fully settled by the Sandiganbayan Resolution of June 19, 2002. None of the parties
questioned this ruling which, in its material points, provides:
1. The preliminary investigation conducted in OMB-0-00-1720 and OMB-0-00-1756 which led
to the filing of the above-entitled case never mentioned the name ofherein movant Jose Victor
Tan Uy. Instead, the preliminary investigation involves one "Eleuterio Tan" a.k.a. "Eleuterio
Ramos Tan" with address at Brgy. Bagbaguin, Valenzuela City, Metro Manila or on [sic] No.
20 Pilar St. Mandaluyong City. As declared by the prosecution itself, Barangay Chairman Jose
S. Gregorio, Jr. of Brgy. Bagbaguin, Valenzuela, Metro Manila certified that "Eleuterio Tan"
a.k.a. "Eleuterio Ramos Tan" is non-existent within the jurisdiction of their barangay.
While theprosecution asserted that "Eleuterio Tan" and 'Eleuterio Ramos Tan'
are the aliases of herein movant, we agree in the latter's observation that the one charged
beforethe Office of the Ombudsman was "Eleuterio Tan" alias "Eleuterio Ramos Tan" which
indicates that the real name of the person charged is "Eleuterio Tan", not an alias only and his
alias is "Eleuterio Ramos Tan". We find merit in the contention of the movant that there was no
showing of any effort on the part of the Office ofOmbudsman to determine whether the names
"Eleuterio Tan" and "Eleuterio Ramos Tan" are mere aliases of an unidentified person.
Further, as aptly observed by themovant, while 'Eleuterio Tan' has other [sic] address at No.
20 Pilar St. Mandaluyong City, there was no showing that subpoena or
copies of the complaints-affidavits were sent at the said address and no explanation was
submitted by the prosecution for such omission. [italics supplied] AcSEHT
2. The claim of the prosecution that movant's address at No. 2041 M. J. Cuenco Avenue, Cebu
City was not indicated because the said address was not yet discovered by the investigation
panel during the preliminary investigation was rebutted by the movant. Movant was able to
show that his address at Cebu City was made known during the hearing
before the Impeachment Court on December 22, 2000. Yet, despite knowledge of the movant's
address, no subpoena or copies of thecomplaints-affidavits had been served upon him at said
address by the prosecution. We understand the clamor of herein movant that
while the prosecution did not give him the opportunity to present his side, it already formed a
conclusion that he and "Eleuterio Tan" are one and the same person. [italics supplied]
3. Movant, after learning from media reports that he was being identified as "Eleuterio Tan",
immediately took steps to disprove the same, as follows:
a. On December 29, 2000, he filed a complaint before the RTC of Cebu City,
entitled "Victor Jose Tan Uy, v. Eleuterio Tan", docketed as CEB-25990 . . . DTISaH
b. Movant, through counsel, wrote a letter dated January 5, 2001 to Senate President
Aquillino Pimentel, disputing the claim that he is "Eleuterio Tan" and expressed his
willingness to testify at the Senate Impeachment Proceeding to clear his name as
to the imputation that he is "Eleuterio Tan" (Annex "E", Reply)
c. Movant, through counsel, sent a letter dated January 8, 2001 to the Regional Chief,
PNP Crime Laboratory, Cebu City, requesting for examination of thehandwriting
appearing on the signature cards as supposedly signed by Eleuterio Tan and on the two

53
 (2) identification cards (IDs) from two (2) different companies supposedly presented
to the Land Bank of the Philippines by the person who opened the account (Annex "F",
Reply). As shown in the Questioned Document Report of Romeo Varona, handwriting
expert who conducted the examination, "the questioned signatures/handwritings of Mr.
Jose [sic] Victor Jose Tan Uy appearing in the signature cards of Land
Bank of the Philippines, ET Enterprises Inc., I.D. San Juan, Metro Manila and Solid
Builders Center Mandaluyong City I.D. No, 19-0198 with their corresponding date
marked "Q-1" and "Q-8" inclusive and the standard signatures/handwritings submitted
for comparison marked "S-1" to "S-49" inclusive were written by two different
persons" (Annex "G", Reply). Relative hereto, Mr. Varona executed an affidavit dated
April 16, 2002 (Annex "B", Reply)." 34 TAESDH
We quote this ruling as it contains the premises that justified the holding of the Sandiganbayan-ordered
preliminary investigation specifically for the petitioner. To restate the Sandiganbayan reasoning in simple
terms: the petitioner was never identified in the previous preliminary investigation to be the person
identified by assumed names or aliases in the supporting complaint-affidavits; hence, a new preliminary
investigation should be conducted to identify him as the person who, using the aliases Eleuterio Tan,
Eleuterio Ramos Tan or Mr. Uy, opened and withdrew from the Landbank account in the course of a
series of acts collectively constituting the crime of plunder.
The critical evidence linking the petitioner to the plunder case is his identification through the identification
documents. This notwithstanding and quite inexplicably, theidentification documents despite the fatal
infirmity the Sandiganbayan found in the first preliminary investigation were once again not given
to the petitioner inthe subsequent Sandiganbayan-ordered preliminary investigation to inform him of his alleged
links to the charges under the complaint-affidavits. 35 ETDSAc
How and why this happened was never satisfactorily explained in the parties' various submissions. Based
on the records of what actually transpired at theSandiganbayan-ordered preliminary investigation, we can
glean the Ombudsman's intent to either confront and identify the petitioner through Ma. Caridad Manahan-
Rodenas, or at least to introduce the Rodenas sworn statement and the identification
documents into the preliminary investigation records through her own personal appearance. For these
purposes, the Ombudsman specifically called the petitioner and Rodenas to a clarificatory hearing that
unfortunately did not result in either ofthese possibilities; the petitioner did not personally attend the hearing
and Rodenas herself failed to show up. At the same time, the Ombudsman was forced,
upon theinsistence of the petitioner's counsel, to consider the inquiry submitted for resolution based
on the records then existing. 36 Thus, the Ombudsman still failed to establish in the Sandiganbayan-ordered
preliminary investigation the direct link between the individual identified by aliases and the petitioner. ACETIa

Unfortunately for the Ombudsman, the holding of the clarificatory hearing, in which Rodenas and the petitioner
were the invitees, is replete with implications touching on the existence of probable cause at that
stage of the proceedings. To be sure, the prosecutor (Ombudsman) cannot be faulted for calling the clarificatory
hearing as it is within his authority to do so. 37 As a rule, however, no clarificatory hearing is necessary
if the evidence on record already shows the existence of probable cause; conversely, a clarificatory hearing is
necessary to establish the probable cause that up to the time of the clarificatory hearing has not been shown.
This implication becomes unavoidable for the present case, given the reason for the Sandiganbayan's order to
conduct another preliminary investigation for the petitioner, and in lightof the evidence so far then presented
which, as in the first preliminary investigation, did not link the petitioner to the assumed names or aliases
appearing in theInformation.
Under the above circumstances, the respondent Ombudsman could only fall back on the simple response
that due process cannot be compartmentalized; the court proceedings participated in by the accused-
movant (the petitioner) form part and parcel of such due process in the same manner that the further
54
preliminary investigation is inseparable from the said court proceedings. 38 We do not however find this
response sufficiently compelling to save the day for the respondent. Thatthe petitioner may have actual prior
knowledge of the identification documents from proceedings elsewhere is not a consideration sufficiently
material to affect our conclusion. Reasonable opportunity to controvert evidence and ventilate one's cause in a
proceeding requires full knowledge of the relevant and material facts specificto that proceeding. One cannot be
expected to respond to collateral allegations or assertions made, or be bound by developments that transpired, in
some other different although related proceedings, except perhaps under situations where facts are rendered
conclusive by reason of judgments between the same parties 39 a situation that does not obtain in the present
case. Otherwise, surprise which is anathema to due process may result together with the consequent
loss ofadequate opportunity to ventilate one's case and be heard. Following Ang Tibay, a decision in a
proceeding must be rendered based on the evidence presented at thehearing (of the proceeding), or at least
contained in the record (of the proceeding) and disclosed to the parties affected (during or
at the proceeding). ADCTac
Thus, we cannot agree with the Ombudsman's position that the petitioner should controvert the identification
documents because they already form part of therecords of the preliminary investigation, having been
introduced in various incidents of Crim. Case No. 26558 then pending with the Sandiganbayan. The rule closest
to a definition of the inter-relationship between records of a preliminary investigation and the criminal case to
which it relates is Section 8 (b), Rule 112 of the Revised Rules of Court which provides
that the record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form
part of the record of thecase; the court, on its own initiative or on motion of any party, may
order the production of the record or any of its parts when necessary in the resolution of the case or any
incident therein, or when it is introduced as an evidence in the case by the requesting party. This rule, however,
relates to the use of preliminary investigation records in the criminal case; no specific provision in the Rules
exists regarding the reverse situation. We are thus guided in this regard by the basic due process requirement
that the right to know and to meet a case requires that a person be fully informed of the pertinent and material
facts unique to the inquiry to which he is called as a party respondent. Under this requirement, reasonable
opportunity to contest evidence as critical as the identification documents should have been given thepetitioner
at the Sandiganbayan-ordered preliminary investigation as part of the facts he must controvert; otherwise, there
is nothing to controvert as the burden ofevidence lies with the one who asserts that a probable cause
exists. The Ombudsman's failure in this regard tainted its findings of probable cause with grave
abuse ofdiscretion that effectively nullifies them. We cannot avoid this conclusion under the constitutional
truism that in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute,
and when weighed against each other, the scales of justice tilt towards the former. 40 ESCTaA
WHEREFORE, premises considered, we hereby GRANT the petition and accordingly
ANNUL the Ombudsman's interrelated Orders dated 13 September 2002 and 16 October 2002 in OMB-0-00-
1720 and OMB-0-00-1756.
SO ORDERED.
||| (Uy v. Office of the Ombudsman, G.R. Nos. 156399-400, [June 27, 2008], 578 PHIL 635-662)

EQUAL PROTECTION

EN BANC

[G.R. No. 189698. February 22, 2010.]

55
 ELEAZAR P. QUINTO and GERINO A. TOLENTINO,
JR., petitioners,vs.COMMISSION ON ELECTIONS, respondent.

RESOLUTION

PUNO, C.J p:

Upon a careful review of the case at bar, this Court resolves to grant the
respondent Commission on Elections' (COMELEC) motion for reconsideration, and the movants-
intervenors' motions for reconsideration-in-intervention, of this Court's December 1, 2009 Decision
(Decision). 1
The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar
P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369, 2 Section 66 of the Omnibus Election Code 3 and
Section 4 (a) of COMELECResolution No. 8678, 4 mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way
for public appointive officials to continue discharging the powers, prerogatives and functions of their office
notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription
against the participation of public appointive officials and members of the military in
partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential
treatment rests on material and substantial distinctions and is germane to the purposes
of the law; cDaEAS
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELEC's motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.
i. Timeliness of COMELEC's Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, 5 in relation to Section 1, Rule 52 of
the same rules, 6 COMELEC had a period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received notice of the assailed
Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

56
 The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009.
The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14,
2009) was subsequently filed on December 17, 2009 still within the reglementary period.
ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
A person who has legal interest in the matter in litigation or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor's rights may be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right
or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another
proceeding. 7 SCIacA
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a
motion for intervention may be filed, viz.:
SECTION 2. Time to intervene. The motion for intervention may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be
attached to the motion and served on the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been
granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a
decision has been rendered by the trial court, 8 when the petition for review of the judgment has already
been submitted for decision before the Supreme Court, 9 and even where the assailed order has already
become final and executory. 10 In Lim v. Pacquing, 11 the motion for intervention filed by the Republic of
the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all
the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of
the court 12 after consideration of the appropriate circumstances. 13 We stress again that Rule 19 of the
Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely
available for justice. 14 Its purpose is not to hinder or delay, but to facilitate and promote the administration
of justice. 15
We rule that, with the exception of the IBP-Cebu City Chapter, all the movants-intervenors may
properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial right or interest in the
case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that
involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and
confidence of the public in its system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision,
have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly
injured by the assailed Decision, unless it is reversed.

57
 Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court's Decision attains
finality and forms part of the laws of the land.
With regard to the IBP-Cebu City Chapter, it anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a
need for it to be allowed to intervene . . . so that the voice of its members in the legal profession would also
be heard before this Highest Tribunal as it resolves issues of transcendental importance." 16 SDHacT
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar.
Its invoked interest is, in character, too indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4 (a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the
following grounds:
(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy
high/influential positions in the government, and (b) they limit these civil servants'
activity regardless of whether they be partisan or nonpartisan in character, or whether
they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these
public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4 (a) of Resolution 8678,
Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13
of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.
III.
Section 4 (a) of COMELEC Resolution 8678 Compliant with Law
Section 4 (a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law
and jurisprudence on the matter, viz.:
Incumbent Appointive Official. Under Section 13 of RA 9369, which reiterates Section 66
of the Omnibus Election Code, any person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines, and officers and employees
in government-owned or -controlled corporations, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.
Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or
the Fair Election Act, 17 which repealed Section 67 of the Omnibus Election Code 18 and
rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as
resigned only upon the start of the campaign period corresponding to the positions for which
they are running, 19 an elected official is not deemed to have resigned from his office upon the
filing of his certificate of candidacy for the same or any other elected office or position. In fine,
an elected official may run for another position without forfeiting his seat. ADEHTS
58
These laws and regulations implement Section 2 (4), Article IX-B of the 1987 Constitution, which prohibits
civil service officers and employees from engaging in any electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers and employees
in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:
MS. QUESADA.
xxx xxx xxx
Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I
quote: "No officer or employee in the civil service shall engage, directly or indirectly,
in any partisan political activity." This is almost the same provision as in the 1973
Constitution. However, we in the government service have actually experienced how
this provision has been violated by the direct or indirect partisan political activities of
many government officials.
So, is the Committee willing to include certain clauses that would make this provision more
strict, and which would deter its violation?
MR. FOZ.
Madam President, the existing Civil Service Law and the implementing rules on the matter are
more than exhaustive enough to really prevent officers and employees in the public
service from engaging in any form of partisan political activity. But the problem really
lies in implementation because, if the head of a ministry, and even the superior officers
of offices and agencies of government will themselves violate the constitutional
injunction against partisan political activity, then no string of words that we may add to
what is now here in this draft will really implement the constitutional intent against
partisan political activity....20 (italics supplied)
To emphasize its importance, this constitutional ban on civil service officers and employees is
presently reflected and implemented by a number of statutes. Section 46 (b) (26), Chapter 7 and Section 55,
Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide
in relevant part:
Section 44. Discipline: General Provisions:
xxx xxx xxx
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(26) Engaging directly or indirectly in partisan political activities by one holding a non-
political office. TCacIE
xxx xxx xxx
Section 55. Political Activity. No officer or employee in the Civil Service including
members of the Armed Forces, shall engage directly or indirectly in any partisan political
activity or take part in any election except to vote nor shall he use his official authority or
influence to coerce the political activity of any other person or body. Nothing herein provided
shall be understood to prevent any officer or employee from expressing his views on current
political problems or issues, or from mentioning the names of his candidates for public office
whom he supports: Provided, That public officers and employees holding political offices may
take part in political and electoral activities but it shall be unlawful for them to solicit
59
 contributions from their subordinates or subject them to any of the acts involving subordinates
prohibited in the Election Code.
Section 261 (i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by
civil service officers and employees in partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx xxx xxx
(i) Intervention of public officers and employees. Any officer or employee in the civil
service, except those holding political offices; any officer, employee, or member of the Armed
Forces of the Philippines, or any police force, special forces, home defense forces, barangay
self-defense units and all other para-military units that now exist or which may hereafter be
organized who, directly or indirectly, intervenes in any election campaign or engages in any
partisan political activity, except to vote or to preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation of civil
service officers and employees in partisan political activities is too plain to be mistaken.
But Section 2 (4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to
civil servants holding apolitical offices. Stated differently,the constitutional ban does not cover elected
officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled corporations
with original charters." 21 This is because elected public officials, by the very nature of their office, engage
in partisan political activities almost all year round, even outside of the campaign period. 22 Political
partisanship is the inevitable essence of a political office, elective positions included. 23
The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office whom
they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:
MS. AQUINO:
Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines
13 and 14. On line 13, between the words "any" and "partisan," add the phrase
ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in
lieu thereof substitute the word CAMPAIGN. AaITCS
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treas):
Commissioner Aquino may proceed.
MS. AQUINO:
The draft as presented by the Committee deleted the phrase "except to vote" which was
adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not
intended as a guarantee to the right to vote but as a qualification of the general
prohibition against taking part in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We know that suffrage, although
plenary, is not an unconditional right. In other words, the Legislature can always pass a
statute which can withhold from any class the right to vote in an election, if public
interest so required. I would only like to reinstate the qualification by specifying the

60
 prohibited acts so that those who may want to vote but who are likewise prohibited
from participating in partisan political campaigns or electioneering may vote.
MR. FOZ:
There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or
employee. The elimination of the last clause of this provision was precisely intended to
protect the members of the civil service in the sense that they are not being deprived of
the freedom of expression in a political contest. The last phrase or clause might have
given the impression that a government employee or worker has no right whatsoever in
an election campaign except to vote, which is not the case. They are still free to express
their views although the intention is not really to allow them to take part actively in a
political campaign. 24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause
We now hold that Section 4 (a) of Resolution 8678, Section 66 of the Omnibus Election Code, and
the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection
clause of the Constitution. DcTSHa
i. Farias, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Farias, et al. v.
Executive Secretary, et al. 25
In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates
against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in
respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso
facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since
Section 66 was not repealed, the limitation on appointive officials continues to be operative they are
deemed resigned when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive
officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We
ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election
Code pertaining to elective officials gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that
make real differences, one class may be treated and regulated differently from the other. The
Court has explained the nature of the equal protection guarantee in this manner:

61
 The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in the object to which it is
directed or by territory within which it is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only
to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making a distinction between those who
fall within such class and those who do not. ADTEaI
Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve at the pleasure of
the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of theAdministrative
Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the
civil service, are strictly prohibited from engaging in any partisan political activity or
take (sic) part in any election except to vote. Under the same provision, elective officials, or
officers or employees holding political offices, are obviously expressly allowed to take part in
political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the
effect on their tenure in the office of the filing of the certificates of candidacy for any position
other than those occupied by them. Again, it is not within the power of the Court to pass upon
or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--
vis appointive officials, is anchored upon material and significant distinctions and all the
persons belonging under the same classification are similarly treated, the equal protection
clause of the Constitution is, thus, not infringed. 26
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision
gave it new life. We ought to be guided by the doctrine ofstare decisis et non quieta movere. This doctrine,
which is really "adherence to precedents," mandates that once a case has been decided one way, then
another case involving exactly the same point at issue should be decided in the same manner. 27 This
doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions.
As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite
way between another. "If a group of cases involves the same point, the parties expect the same
decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case
was decided against me yesterday when I was a defendant, I shall look for the same judgment
today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in
my breast; it would be an infringement, material and moral, of my rights." Adherence to
precedent must then be the rule rather than the exception if litigants are to have faith in the
even-handed administration of justice in the courts. 28 CaHAcT

62
 Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot
be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum. 29 This rule applies to all pertinent questions
that are presented and resolved in the regular course of the consideration of the case and lead up to the final
conclusion, and to any statement as to the matter on which the decision is predicated. 30 For that reason, a
point expressly decided does not lose its value as a precedent because the disposition of the case is, or might
have been, made on some other ground; or even though, by reason of other points in the case, the result
reached might have been the same if the court had held, on the particular point, otherwise than it did. 31 As
we held in Villanueva, Jr. v. Court of Appeals, et al.: 32
...A decision which the case could have turned on is not regarded as obiter dictum merely
because, owing to the disposal of the contention, it was necessary to consider another
question, nor can an additional reason in a decision, brought forward after the case has been
disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or
more points, any one of which is sufficient to determine the ultimate issue, but the court
actually decides all such points, the case as an authoritative precedent as to every point
decided, and none of such points can be regarded as having the status of a dictum, and one
point should not be denied authority merely because another point was more dwelt on and
more fully argued and considered, nor does a decision on one proposition make statements of
the court regarding other propositions dicta. 33 (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Farias ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction. 34 What it simply requires is equality among equals as determined
according to a valid classification. 35 The test developed by jurisprudence here and yonder is that of
reasonableness, 36 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. 37
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first,
third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the
law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by
the measure remain," viz.: SCEDaT
...For example, the Executive Secretary, or any Member of the Cabinet for that matter, could
wield the same influence as the Vice-President who at the same time is appointed to a Cabinet
post (in the recent past, elected Vice-Presidents were appointed to take charge of national
housing, social welfare development, interior and local government, and foreign affairs).With
the fact that they both head executive offices, there is no valid justification to treat them
differently when both file their [Certificates of Candidacy] for the elections. Under the present
state of our law, the Vice-President, in the example, running this time, let us say, for President,
retains his position during the entire election period and can still use the resources of his office
to support his campaign. 38
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice,
the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a

63
time." 39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating
some inequity as to those included or excluded. 40 Nevertheless, as long as "the bounds of reasonable
choice" are not exceeded, the courts must defer to the legislative judgment. 41 We may not strike down a
law merely because the legislative aim would have been more fully achieved by expanding the
class. 42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not
render it unconstitutionally arbitrary or invidious. 43 There is no constitutional requirement that regulation
must reach each and every class to which it might be applied; 44 that the Legislature must be held rigidly to
the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible rational bases
for the differing treatment, whether or not the Legislature cited those bases as reasons for the
enactment, 46 such that the constitutionality of the law must be sustained even if the reasonableness of the
classification is "fairly debatable." 47 In the case at bar, the petitioners failed and in fact did not even
attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this
point even while we submitted the following thesis:
...[I]t is not sufficient grounds for invalidation that we may find that the statute's distinction is
unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather,
we must find that there is no reasonably rational reason for the differing treatment. 48
In the instant case, is there a rational justification for excluding elected officials from the
operation of the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the
sovereign power of the people. 49 It involves the choice or selection of candidates to public
office by popular vote. 50 Considering that elected officials are put in office by their
constituents for a definite term, it may justifiably be said that they were excluded from the
ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign
will. In other words, complete deference is accorded to the will of the electorate that they be
served by such officials until the end of the term for which they were elected. In contrast, there
is no such expectation insofar as appointed officials are concerned. CaSHAc
The dichotomized treatment of appointive and elective officials is therefore germane to
the purposes of the law. For the law was made not merely to preserve the integrity,
efficiency, and discipline of the public service; the Legislature, whose wisdom is outside
the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet
equally compelling, interest of deferring to the sovereign will. 51 (emphasis in the original)
In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions
of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor
a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and
elected officials, over another in which a significant portion thereof is contained. The absurdity of that
position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter
worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance competing interests and
thereafter make policy choices responsive to the exigencies of the times. It is certainly within the
Legislature's power to make the deemed-resigned provisions applicable to elected officials, should it later
decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain
and impose on the people the best state of affairs from a public policy standpoint.

64
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft. 52 This was a decision of the First Circuit of the
United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a
similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably linked" with two fundamental freedoms
freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions pursue their objective in a far too
heavy-handed manner as to render them unconstitutional.
It then concluded with the exhortation that since "the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we,
too, should follow suit." TCHcAE
Our assailed Decision's reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v.
National Association of Letter Carriers AFL-CIO, et al. 53 and Broadrick, et al. v. State of
Oklahoma, et al., 54 the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal 55 and state 56 employees from taking an active part in political management
or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these
provisions results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly from those
it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the
legitimate interest of employee free expression against the interests of the employer in promoting efficiency
of public services; (iii) if the employees' expression interferes with the maintenance of efficient and
regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to
be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory
restrictions. 57 Therefore, insofar as government employees are concerned, the correct standard of review is
an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the
governmental interests and the prohibitions in question. 58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have been that
partisan political activities by federal employees must be limited if the Government is to
operate effectively and fairly, elections are to play their proper part in representative
government, and employees themselves are to be sufficiently free from improper influences.
The restrictions so far imposed on federal employees are not aimed at particular parties,
groups, or points of view, but apply equally to all partisan activities of the type described. They
discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control
political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education, 59 the government has an interest in
regulating the conduct and 'the speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the citizenry in general. The problem
in any case is to arrive at a balance between the interests of the (employee),as a citizen, in
65
commenting upon matters of public concern and the interest of the (government),as an
employer, in promoting the efficiency of the public services it performs through its employees.'
Although Congress is free to strike a different balance than it has, if it so chooses, we think the
balance it has so far struck is sustainable by the obviously important interests sought to be
served by the limitations on partisan political activities now contained in the Hatch
Act. HTSIEa
It seems fundamental in the first place that employees in the Executive Branch of the
Government, or those working for any of its agencies, should administer the law in accordance
with the will of Congress, rather than in accordance with their own or the will of a political
party. They are expected to enforce the law and execute the programs of the Government
without bias or favoritism for or against any political party or group or the members
thereof. A major thesis of the Hatch Act is that to serve this great end of Government the
impartial execution of the laws it is essential that federal employees, for example, not take
formal positions in political parties, not undertake to play substantial roles in partisan political
campaigns, and not run for office on partisan political tickets. Forbidding activities like these
will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only important that the Government
and its employees in fact avoid practicing political justice, but it is also critical that they
appear to the public to be avoiding it, if confidence in the system of representative Government
is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was
perhaps the immediate occasion for enactment of the Hatch Act in 1939.That was the
conviction that the rapidly expanding Government work force should not be employed to build
a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and
1938 campaigns convinced Congress that these dangers were sufficiently real that substantial
barriers should be raised against the party in power or the party out of power, for that matter
using the thousands or hundreds of thousands of federal employees, paid for at public
expense, to man its political structure and political campaigns. HIDCTA
A related concern, and this remains as important as any other, was to further serve the goal
that employment and advancement in the Government service not dependon political
performance, and at the same time to make sure that Government employees would be free
from pressure and from express or tacit invitation to vote in a certain way or perform political
chores in order to curry favor with their superiors rather than to act out their own beliefs. It
may be urged that prohibitions against coercion are sufficient protection; but for many years
the joint judgment of the Executive and Congress has been that to protect the rights of federal
employees with respect to their jobs and their political acts and beliefs it is not enough merely
to forbid one employee to attempt to influence or coerce another. For example, at the hearings
in 1972 on proposed legislation for liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that 'the prohibitions against active
participation in partisan political management and partisan political campaigns constitute the
most significant safeguards against coercion . . ..' Perhaps Congress at some time will come to
a different view of the realities of political life and Government service; but that is its current
view of the matter, and we are not now in any position to dispute it. Nor, in our view, does
the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in any
event. 60 ...
xxx xxx xxx

66
 As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the
will of Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan
political conduct of state employees. Appellants freely concede that such restrictions serve
valid and important state interests, particularly with respect to attracting greater numbers of
qualified people by insuring their job security, free from the vicissitudes of the elective process,
and by protecting them from 'political extortion.' Rather, appellants maintain that however
permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally
vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that
may be proscribed and conduct that must be permitted. For these and other reasons, appellants
assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced
against them or anyone else.
We have held today that the Hatch Act is not impermissibly vague. 61 We have little doubt that
s 818 is similarly not so vague that 'men of common intelligence must necessarily guess at its
meaning.' 62 Whatever other problems there are with s 818, it is all but frivolous to suggest
that the section fails to give adequate warning of what activities it proscribes or fails to set out
'explicit standards' for those who must apply it. In the plainest language, it prohibits any state
classified employee from being 'an officer or member' of a 'partisan political club' or a
candidate for 'any paid public office.' It forbids solicitation of contributions 'for any political
organization, candidacy or other political purpose' and taking part 'in the management or affairs
of any political party or in any political campaign.' Words inevitably contain germs of
uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms
in s 818 as 'partisan,' or 'take part in,' or 'affairs of' political parties. But what was said in Letter
Carriers, is applicable here: 'there are limitations in the English language with respect to being
both specific and manageably brief, and it seems to us that although the prohibitions may not
satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and comply with,
without sacrifice to the public interest.' ... IAEcCT
xxx xxx xxx
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected,
as well as unprotected conduct, and must therefore be struck downon its face and held to be
incapable of any constitutional application. We do not believe that the overbreadth doctrine
may appropriately be invoked in this manner here.
xxx xxx xxx
The consequence of our departure from traditional rules of standing in the First Amendment
area is that any enforcement of a statute thus placed at issue is totally forbidden until and
unless a limiting construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression. Application of the overbreadth
doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court
sparingly and only as a last resort. ...
...But the plain import of our cases is, at the very least, that facial over-breadth adjudication is
an exception to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves
from 'pure speech' toward conduct and that conduct-even if expressive-falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
67
 comprehensive controls over harmful, constitutionally unprotected conduct. Although such
laws, if too broadly worded, may deter protected speech to some unknown extent, there comes
a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a
statute on its face and so prohibiting a State from enforcing the statute against conduct that is
admittedly within its power to proscribe. To put the matter another way, particularly where
conduct and not merely speech is involved, we believe that the overbreadth of a statute must
not only be real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth
may exist should be cured through case-by-case analysis of the fact situations to which its
sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed,
by its terms, at political expression which if engaged in by private persons would plainly be
protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a
censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to
regulate political activity in an even-handed and neutral manner. As indicted, such statutes
have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to
state regulation as the public peace or criminal trespass. This much was established in United
Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers.
Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as
it forbids classified employees from: soliciting contributions for partisan candidates, political
parties, or other partisan political purposes; becoming members of national, state, or local
committees of political parties, or officers or committee members in partisan political clubs, or
candidates for any paid public office;taking part in the management or affairs of any political
party's partisan political campaign; serving as delegates or alternates to caucuses or
conventions of political parties; addressing or taking an active part in partisan political rallies
or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in caravans for any political party or
partisan political candidate. HAIaEc
...It may be that such restrictions are impermissible and that s 818 may be susceptible of some
other improper applications. But, as presently construed, we do not believe that s 818 must be
discarded in toto because some persons' arguably protected conduct may or may not be caught
or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided
based on a different set of facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act's prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to campaign for candidates for
public office, to encourage and get federal employees to run for state and local offices, to
participate as delegates in party conventions, and to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision
in the (sic) Oklahoma's Merit System of Personnel Administration Act restricting the political
activities of the State's classified civil servants, in much the same manner as the Hatch Act
proscribed partisan political activities of federal employees. Prior to the commencement of the
68
 action, the appellants actively participated in the 1970 reelection campaign of their superior,
and were administratively charged for asking other Corporation Commission employees to do
campaign work or to give referrals to persons who might help in the campaign, for soliciting
money for the campaign, and for receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision.
Kenneth Mancuso, a full time police officer and classified civil service employee of the City of
Cranston, filed as a candidate for nomination as representative to the Rhode Island General
Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run
provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided
based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a
reversal of Mancuso. ...(italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his
claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run
laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality
of 14.09 (c) of the City Home Rule Charter, which prohibits "continuing in the
classified service of the city after becoming a candidate for nomination or election to
any public office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act's prohibition against "active
participation in political management or political campaigns" 63 with respect to certain
defined activities in which they desired to engage. The plaintiffs relevant to this
discussion are: THEcAS
(a) The National Association of Letter Carriers, which alleged that its members were
desirous of, among others, running in local elections for offices such as school
board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the
office of Borough Councilman in his local community for fear that his
participation in a partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the
1971 partisan election for the mayor of West Lafayette, Indiana, and that he
would do so except for fear of losing his job by reason of violation of the Hatch
Act.
The Hatch Act defines "active participation in political management or political campaigns"
by cross-referring to the rules made by the Civil Service Commission. The rule
pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to
any National, State, county, or municipal office is not permissible. The
prohibition against political activity extends not merely to formal announcement
of candidacy but also to the preliminaries leading to such announcement and to
canvassing or soliciting support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is merely passive is
immaterial; if an employee acquiesces in the efforts of friends in furtherance of

69
 such candidacy such acquiescence constitutes an infraction of the prohibitions
against political activity. (italics supplied)
Section 9 (b) requires the immediate removal of violators and forbids the use of appropriated
funds thereafter to pay compensation to these persons. 64
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a
declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma's
Merit System of Personnel Administration Act. Section 818 (7),the paragraph relevant
to this discussion, states that "[n]o employee in the classified service shall be ...a
candidate for nomination or election to any paid public office ..." Violation of Section
818 results in dismissal from employment, possible criminal sanctions and limited state
employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively
overruled Mancuso.By no stretch of the imagination could Mancuso still be held operative, as Letter
Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a
superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals the same court that decided Mancuso to hold categorically and emphaticallyin Magill v.
Lynch 65 that Mancuso is no longer good law.As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's
"Little Hatch Act" prohibits city employees from engaging in a broad range of political
activities. Becoming a candidate for any city office is specifically proscribed, 66 the violation
being punished by removal from office or immediate dismissal. The firemen brought an action
against the city officials on the ground that that the provision of the city charter was
unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took
the position that Mancuso had since lost considerable vitality. It observed that the view
that political candidacy was a fundamental interest which could be infringed upon only if
less restrictive alternatives were not available, was a position which was no longer viable,
since the Supreme Court (finding that the government's interest in regulating both the
conduct and speech of its employees differed significantly from its interest in regulating
those of the citizenry in general) had given little weight to the argument that prohibitions
against the coercion of government employees were a less drastic means to the same end,
deferring to the judgment of Congress, and applying a "balancing" test to determine
whether limits on political activity by public employees substantially served government
interests which were "important" enough to outweigh the employees' First Amendment
rights. 67 aIcCTA
It must be noted that the Court of Appeals ruled in this manner even though the election
in Magill was characterized as nonpartisan,as it was reasonable for the city to fear, under the
circumstances of that case, that politically active bureaucrats might use their official power to
help political friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision, which bars a city
employee's candidacy in even a nonpartisan city election, is constitutional. The issue
compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v.
Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring
civil servants from partisan political activity. Letter Carriers reaffirmed United Public
Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal
employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional
attack, limiting its holding to Oklahoma's construction that the Act barred only activity
in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in

70
 nonpartisan elections would not be constitutional. Letter Carriers and Broadrick
compel new analysis.
xxx xxx xxx
What we are obligated to do in this case, as the district court recognized, is to apply the
Court's interest balancing approach to the kind of nonpartisan electionrevealed in this
record. We believe that the district court found more residual vigor in our opinion in
Mancuso v. Taft than remains after Letter Carriers. We have particular reference to
our view that political candidacy was a fundamental interest which could be trenched
upon only if less restrictive alternatives were not available. While this approach may
still be viable for citizens who are not government employees, the Court in Letter
Carriers recognized that the government's interest in regulating both the conduct and
speech of its employees differs significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly"
reaffirmed, but the Court gave little weight to the argument that prohibitions against the
coercion of government employees were a less drastic means to the same end, deferring
to the judgment of the Congress. We cannot be more precise than the Third Circuit in
characterizing the Court's approach as "some sort of 'balancing' process".68 It appears
that the government may place limits on campaigning by public employees if the limits
substantially serve government interests that are "important" enough to outweigh the
employees' First Amendment rights. ...(italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket
provision as follows:
In Letter Carriers[,] the first interest identified by the Court was that of an efficient
government, faithful to the Congress rather than to party. The district court discounted
this interest, reasoning that candidates in a local election would not likely be committed
to a state or national platform. This observation undoubtedly has substance insofar as
allegiance to broad policy positions is concerned. But a different kind of possible
political intrusion into efficient administration could be thought to threaten municipal
government: not into broad policy decisions, but into the particulars of administration
favoritism in minute decisions affecting welfare, tax assessments, municipal contracts
and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter
Carriers identified a second governmental interest in the avoidance of the appearance
of "political justice" as to policy, so there is an equivalent interest in avoiding the
appearance of political preferment in privileges, concessions, and benefits. The
appearance (or reality) of favoritism that the charter's authors evidently feared is not
exorcised by the nonpartisan character of the formal election process. Where, as here,
party support is a key to successful campaigning, and party rivalry is the norm, the city
might reasonably fear that politically active bureaucrats would use their official power
to help political friends and hurt political foes. This is not to say that the city's interest
in visibly fair and effective administration necessarily justifies a blanket prohibition of
all employee campaigning; if parties are not heavily involved in a campaign, the danger
of favoritism is less, for neither friend nor foe is as easily identified. CScaDH
A second major governmental interest identified in Letter Carriers was avoiding the
danger of a powerful political machine. The Court had in mind the large and growing
federal bureaucracy and its partisan potential. The district court felt this was only a
minor threat since parties had no control over nominations. But in fact candidates
sought party endorsements, and party endorsements proved to be highly effective both
71
in determining who would emerge from the primary election and who would be elected
in the final election. Under the prevailing customs, known party affiliation and support
were highly significant factors in Pawtucket elections. The charter's authors might
reasonably have feared that a politically active public work force would give the
incumbent party, and the incumbent workers, an unbreakable grasp on the reins of
power. In municipal elections especially, the small size of the electorate and the limited
powers of local government may inhibit the growth of interest groups powerful enough
to outbalance the weight of a partisan work force. Even when nonpartisan issues and
candidacies are at stake, isolated government employees may seek to influence voters
or their co-workers improperly; but a more real danger is that a central party structure
will mass the scattered powers of government workers behind a single party platform or
slate. Occasional misuse of the public trust to pursue private political ends is tolerable,
especially because the political views of individual employees may balance each other
out. But party discipline eliminates this diversity and tends to make abuse systematic.
Instead of a handful of employees pressured into advancing their immediate superior's
political ambitions, the entire government work force may be expected to turn out for
many candidates in every election. In Pawtucket, where parties are a continuing
presence in political campaigns, a carefully orchestrated use of city employees in
support of the incumbent party's candidates is possible. The danger is scarcely lessened
by the openness of Pawtucket's nominating procedure or the lack of party labels on its
ballots.
The third area of proper governmental interest in Letter Carriers was ensuring that
employees achieve advancement on their merits and that they be free from both
coercion and the prospect of favor from political activity. The district court did not
address this factor, but looked only to the possibility of a civil servant using his position
to influence voters, and held this to be no more of a threat than in the most nonpartisan
of elections. But we think that the possibility of coercion of employees by superiors
remains as strong a factor in municipal elections as it was in Letter Carriers. Once
again, it is the systematic and coordinated exploitation of public servants for political
ends that a legislature is most likely to see as the primary threat of employees' rights.
Political oppression of public employees will be rare in an entirely nonpartisan system.
Some superiors may be inclined to ride herd on the politics of their employees even in a
nonpartisan context, but without party officials looking over their shoulders most
supervisors will prefer to let employees go their own ways.
In short, the government may constitutionally restrict its employees' participation in
nominally nonpartisan elections if political parties play a large role in the campaigns. In
the absence of substantial party involvement, on the other hand, the interests identified
by the Letter Carriers Court lose much of their force. While the employees' First
Amendment rights would normally outbalance these diminished interests, we do not
suggest that they would always do so. Even when parties are absent, many employee
campaigns might be thought to endanger at least one strong public interest, an interest
that looms larger in the context of municipal elections than it does in the
national elections considered in Letter Carriers. The city could reasonably fear the
prospect of a subordinate running directly against his superior or running for a position
that confers great power over his superior. An employee of a federal agency who seeks
a Congressional seat poses less of a direct challenge to the command and discipline of
his agency than a fireman or policeman who runs for mayor or city council. The
possibilities of internal discussion, cliques, and political bargaining, should an
employee gather substantial political support, are considerable. (citations
omitted) TEaADS
72
The court, however, remanded the case to the district court for further proceedings in respect of
the petitioners' overbreadth charge. Noting that invalidating a statute for being overbroad is
"not to be taken lightly, much less to be taken in the dark," the court held:
The governing case is Broadrick, which introduced the doctrine of "substantial"
overbreadth in a closely analogous case. Under Broadrick, when one who challenges a
law has engaged in constitutionally unprotected conduct (rather than unprotected
speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth
of a statute must not only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to
distinguish speech from conduct, and how to define "substantial" overbreadth. We are
spared the first inquiry byBroadrick itself. The plaintiffs in that case had solicited
support for a candidate, and they were subject to discipline under a law proscribing a
wide range of activities, including soliciting contributions for political candidates and
becoming a candidate. The Court found that this combination required a substantial
overbreadth approach. The facts of this case are so similar that we may reach the same
result without worrying unduly about the sometimes opaque distinction between speech
and conduct.
The second difficulty is not so easily disposed of. Broadrick found no substantial
overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further,
banning participation in nonpartisan campaigns as well. Measuring the substantiality of
a statute's overbreadth apparently requires, inter alia, a rough balancing of the number
of valid applications compared to the number of potentially invalid applications. Some
sensitivity to reality is needed; an invalid application that is far-fetched does not
deserve as much weight as one that is probable. The question is a matter of degree; it
will never be possible to say that a ratio of one invalid to nine valid applications makes
a law substantially overbroad. Still, an overbreadth challenger has a duty to provide
the court with some idea of the number of potentially invalid applications the statute
permits. Often, simply reading the statute in the light of common experience or litigated
cases will suggest a number of probable invalid applications. But this case is different.
Whether the statute is overbroad depends in large part on the number of electionsthat
are insulated from party rivalry yet closed to Pawtucket employees. For all the record
shows, every one of the city, state, or federal elections in Pawtucket is actively
contested by political parties. Certainly the record suggests that parties play a major
role even in campaigns that often are entirely nonpartisan in other cities. School
committee candidates, for example, are endorsed by the local Democratic committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not
to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus
below, in the short period before the election was held, was on the constitutionality of
the statute as applied. Plaintiffs may very well feel that further efforts are not
justified, but they should be afforded the opportunity to demonstrate that the charter
forecloses access to a significant number of offices, the candidacy for which by
municipal employees would not pose the possible threats to government efficiency and
integrity which Letter Carriers, as we have interpreted it, deems
significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim.
(italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt
that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been
overruled.69 As it is no longer good law, the ponencia's exhortation that "[since] the
Americans, from whom we copied the provision in question, had already stricken down a
73
 similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" is
misplaced and unwarranted. 70
Accordingly, our assailed Decision's submission that the right to run for public office is "inextricably
linked" with two fundamental freedoms those of expression and association lies on barren ground.
American case law has in fact never recognized a fundamental right to express one's political views
through candidacy, 71 as to invoke a rigorous standard of review. 72 Bart v. Telford 73 pointedly
stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court
has held that it does not do so by implication either." Thus, one's interest in seeking office, by
itself, is not entitled to constitutional protection. 74 Moreover, one cannot bring one's action under the
rubric of freedom of association, absent any allegation that, by running for an elective position, one is
advancing the political ideas of a particular set of voters. 75 HTSAEa
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to
party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a
powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that
they be free from both coercion and the prospect of favor from political activity).These are interests that are
important enough to outweigh the non-fundamental right of appointive officials and employees to seek
elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v.
Fashing 76 and Morial, et al. v. Judiciary Commission of the State of Louisiana,et al. 77 to buttress his
dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials,
he explains:
...U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions
when applied to specified or particular officials, as distinguished from all others, 78 under
a classification that is germane to the purposes of the law. These resign-to-run
legislations were not expressed in a general and sweeping provision, and thus did not
violate the test of being germane to the purpose of the law, the second requisite for a valid
classification. Directed, as they were, to particular officials, they were not overly
encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial.The resign-to-run provisions
in these cases were upheld not because they referred to specified or particular officials (vis--vis a general
class);the questioned provisions were found valid precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid of a rational predicate simply because it happens
to be incomplete.In fact, the equal protection challenge inClements revolved around the claim that the
State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while
others are not. Ruled the United States Supreme Court:
Article XVI, 65, of the Texas Constitution provides that the holders of certain offices
automatically resign their positions if they become candidates for any other elected office,
unless the unexpired portion of the current term is one year or less. The burdens that 65
imposes on candidacy are even less substantial than those imposed by 19. The two
provisions, of course, serve essentially the same state interests. The District Court found 65
deficient, however, not because of the nature or extent of the provision's
restriction on candidacy, but because of the manner in which the offices are
classified. According to the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why some elected public
officials are subject to 65 and why others are not. As with the case of 19, we conclude that

74
 65 survives a challenge under the Equal Protection Clause unless appellees can show that
there is no rational predicate to the classification scheme. TcSICH
The history behind 65 shows that it may be upheld consistent with the "one step at a time"
approach that this Court has undertaken with regard to state regulation not subject to more
vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in
1954 as a transitional provision applying only to the 1954 election. Section 65 extended the
terms of those offices enumerated in the provision from two to four years. The provision also
staggered the terms of other offices so that at least some county and local offices would be
contested at each election. The automatic resignation proviso to 65 was not added until 1958.
In that year, a similar automatic resignation provision was added in Art. XI, 11, which
applies to officeholders in home rule cities who serve terms longer than two years. Section 11
allows home rule cities the option of extending the terms of municipal offices from two to up
to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms
of 1958. That the State did not go further in applying the automatic resignation provision to
those officeholders whose terms were not extended by 11 or 65, absent an invidious
purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the
Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it
happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one
elected officeholder's candidacy for another elected office unless and until it places similar
restrictions onother officeholders. The provision's language and its history belie any notion that
65 serves the invidious purpose of denying access to the political process to identifiable
classes of potential candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket
approval of restrictions on the right of public employees to become candidates for public office" out of
context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the
facts of that case, as each equal protection challenge would necessarily have to involve weighing
governmental interests vis--vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are
unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in
today's decision should be taken to imply that public employees may be prohibited from
expressing their private views on controversial topics in a manner that does not interfere with
the proper performance of their public duties. In today's decision, there is no blanket approval
of restrictions on the right of public employees to become candidates for public office. Nor do
we approve any general restrictions on the political and civil rights of judges in particular. Our
holding is necessarily narrowed by the methodology employed to reach it. A requirement that a
state judge resign his office prior to becoming a candidate for non-judicial office bears a
reasonably necessary relation to the achievement of the state's interest in preventing the
actuality or appearance of judicial impropriety. Such a requirement offends neither the first
amendment's guarantees of free expression and association nor the fourteenth amendment's
guarantee of equal protection of the laws. (italics supplied) cTCEIS
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left unregulated.
And a State can hardly be faulted for attempting to limit the positions upon which such
restrictions are placed. (citations omitted)
V.
75
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth
Apart from nullifying Section 4 (a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of
the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being
overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an
elective post and the degree of influence that may be attendant thereto; 79 and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan
or nonpartisan in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of
Incumbent Appointive Official's Position, Valid
According to the assailed Decision, the challenged provisions of law are overly broad because they
apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the degree of influence that may be
attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only when
the incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic
abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government
workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power." 80 As
elucidated in our prior exposition: 81 EHTSCD
Attempts by government employees to wield influence over others or to make use of their
respective positions (apparently) to promote their own candidacy may seem tolerable even
innocuous particularly when viewed in isolation from other similar attempts by other
government employees. Yet it would be decidedly foolhardy to discount the equally (if not
more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken
together, constitute a veiled effort on the part of an emerging central party structure to advance
its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials"
coming from various levels of the bureaucracy.
...[T]he avoidance of such a "politically active public work force" which could give an
emerging political machine an "unbreakable grasp on the reins of power" is reason enough to
impose a restriction on the candidacies of all appointive public officials without further
distinction as to the type of positions being held by such employees or the degree of influence
that may be attendant thereto. (citations omitted)
ii. Limitation on Candidacy
Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly broad because they
are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the
type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.
76
 This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and
the temptations it fosters are sufficiently different from those involved in an office removed from regular
party politics [so as] to warrant distinctive treatment," 82 so that restrictions on candidacy akin to those
imposed by the challenged provisions can validly apply only to situations in which the elective office sought
is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies
for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that the
alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth
therein refer to the filing of certificates of candidacy and nomination of official candidates of
registered political parties, in connection with the May 10, 2010 National and
Local Elections. 83 Obviously, these rules and guidelines, including the restriction in Section
4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National
and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is
clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of
appointive officials vying forpartisan elective posts in the May 10, 2010 National and
Local Elections. On this score, the overbreadth challenge leveled against Section 4 (a) is
clearly unsustainable.aIcDCH
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus
Election Code, in conjunction with other related laws on the matter, will confirm that these
provisions are likewise not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay
offices, since these are the only elections in this country which involvenonpartisan public
offices. 84
In this regard, it is well to note that from as far back as the enactment of the Omnibus Election
Code in 1985, Congress has intended that these nonpartisan barangayelections be governed by
special rules, including a separate rule on deemed resignations which is found in Section 39 of
the Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. No person shall be elected punong barangay
or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy
in triplicate on any day from the commencement of the election period but not later
than the day before the beginning of the campaign period in a form to be prescribed by
the Commission. The candidate shall state the barangay office for which he is a
candidate.
xxx xxx xxx
Any elective or appointive municipal, city, provincial or national official or employee,
or those in the civil or military service, including those in government-owned or-
controlled corporations, shall be considered automatically resigned upon the filing of
certificate of candidacy for a barangay office.
Since barangay elections are governed by a separate deemed resignation rule, under the
present state of law, there would be no occasion to apply the restriction oncandidacy found in
Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13
of RA 9369, to any election other than a partisan one. For this reason, the overbreadth
challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in
Section 13 of RA 9369 must also fail. 85

77
 In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also
to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we
explained:
In the first place, the view that Congress is limited to controlling only partisan behavior has not
received judicial imprimatur, because the general proposition of the relevant US cases on the
matter is simply that the government has an interest in regulating the conduct and speech of its
employees that differs significantly from those it possesses in connection with regulation of the
speech of the citizenry in general. 86
Moreover, in order to have a statute declared as unconstitutional or void on its face for being
overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved,
the overbreadth must not only be real, but substantial as well, judged in relation to the statute's
plainly legitimate sweep. 87 DaTEIc
In operational terms, measuring the substantiality of a statute's overbreadth would entail,
among other things, a rough balancing of the number of valid applications compared to the
number of potentially invalid applications. 88 In this regard, some sensitivity to reality is
needed; an invalid application that is far-fetched does not deserve as much weight as one that is
probable. 89 The question is a matter of degree. 90 Thus, assuming for the sake of argument
that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to
make this distinction is susceptible to an overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide this Court with some idea of the number of
potentially invalid elections (i.e., the number of elections that were insulated from party rivalry
but were nevertheless closed to appointive employees) that may in all probability result from
the enforcement of the statute. 91
The state of the record, however, does not permit us to find overbreadth. Borrowing from the
words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in
the dark, 92 especially since an overbreadth finding in this case would effectively prohibit the
State from 'enforcing an otherwise valid measure against conduct that is admittedly within its
power to proscribe.' 93
This Court would do well to proceed with tiptoe caution, particularly when it comes to the
application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or
burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that
must be used sparingly, and only as a last resort. 94 EcIaTA
In the United States, claims of facial overbreadth have been entertained only where, in the judgment
of the court, the possibility that protected speech of others may be muted and perceived grievances left to
fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society
in allowing some unprotected speech or conduct to go unpunished. 95 Facial overbreadth has likewise not
been invoked where a limiting construction could be placedon the challenged statute, and where there are
readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of
the statute. 96
In the case at bar, the probable harm to society in permitting incumbent appointive officials to
remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad
statute.
In this light, the conceivably impermissible applications of the challenged statutes which are, at
best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from
enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its
78
 power and interest to proscribe. 97 Instead, the more prudent approach would be to deal with these
conceivably impermissible applications through case-by-case adjudication rather than through a total
invalidation of the statute itself. 98
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed
their Certificates of Candidacy without relinquishing their posts. 99 Several COMELEC election officers
had likewise filed their Certificates of Candidacy in their respective provinces. 100 Even the Secretary of
Justice had filed her certificate of substitution for representative of the first district of Quezon province last
December 14, 2009 101 even as her position as Justice Secretary includes supervision over the City and
Provincial Prosecutors, 102who, in turn, act as Vice-Chairmen of the respective Boards of
Canvassers. 103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has
thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their
favor.
For the foregoing reasons, we now rule that Section 4 (a) of Resolution 8678 and Section 13 of RA
9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent's and the intervenors'
Motions for Reconsideration; REVERSE and SET ASIDE this Court's December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4
(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13
of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. IDCHTE
SO ORDERED.
Carpio, Corona, Carpio Morales, Velasco, Jr.,Nachura, Leonardo-de Castro, Brion, Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr.,Perez and Mendoza, JJ.,concur.

Separate Opinions

CARPIO, J.,concurring:

I concur with the ponencia of Chief Justice Reynato S. Puno.

The filing of a Certificate of Candidacy for an elective position is, by the very nature of the act, an
electioneering or partisan political activity.
Two provisions of the Constitution, taken together, mandate that civil service employees cannot
engage in any electioneering or partisan political activity except to vote. Thus, the Constitution provides:
Section 2(4), Article IX-B of the Constitution
No officer or employee in the civil service shall engage, directly or indirectly, in any
electioneering or partisan political activity.
Section 5(3), Article XVI of the Constitution
No member of the military shall engage, directly or indirectly, in any partisan political activity,
except to vote.
During the deliberations of the Constitutional Commission on these provisions of the Constitution, it
was clear that the exercise of the right to vote is the onlynon-partisan political activity a citizen can do. All
other political activities are deemed partisan. Thus, Commissioner Christian Monsod declared that, "As a
matter of fact, the only non partisan political activity one can engage in as a citizen is voting." 1

79
 Indisputably, any political activity except to vote is a partisan political activity. Section 79 (b) of
the Omnibus Election Code implements this by declaring thatany act designed to elect or promote the
election of a candidate is an electioneering or partisan political activity, thus:
The term "election campaign" or "partisan political activity"refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office ...."
Filing a certificate of candidacy is obviously a partisan political activity.
First, the mere filing of a Certificate of Candidacy is a definitive announcement to the world that a
person will actively solicit the votes of the electorate to win an elective public office. Such an
announcement is already a promotion of the candidate's election to public office. Indeed, once a person
becomes an official candidate, he abandons the role of a mere passive voter in an election, and assumes the
role of a political partisan, a candidate promoting his own candidacy to public office. ECaITc
Second, only a candidate for a political office files a Certificate of Candidacy. A person merely
exercising his or her right to vote does not. A candidate for a political office is necessarily a partisan
political candidate because he or she is contesting an elective office against other political candidates. The
candidate and the electorate know that there are, more often than not, other candidates vying for the same
elective office, making the contest politically partisan.
Third, a candidate filing his or her Certificate of Candidacy almost always states in the Certificate of
Candidacy the name of the political party to which he or she belongs. The candidate will even attach to his
or her Certificate of Candidacy the certification of his or her political party that he or she is the official
candidate of the political party. Such certification by a political party is obviously designed to promote the
election of the candidate.
Fourth, the constitutional ban prohibiting civil servants from engaging in partisan political activities
is intended, among others, to keep the civil service non-partisan. This constitutional ban is violated when a
civil servant files his or her Certificate of Candidacy as a candidate of a political party. From the moment
the civil servant files his or her Certificate of Candidacy, he or she is immediately identified as a political
partisan because everyone knows he or she will prepare, and work, for the victory of his or her political
party in the elections.
Fifth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is
also intended to prevent civil servants from using their office, and the resources of their office, to promote
their candidacies or the candidacies of other persons. We have seen the spectacle of civil servants who, after
filing their certificates of candidacies, still cling to their public office while campaigning during office
hours.
Sixth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is
further intended to prevent conflict of interest. We have seen Comelec officials who, after filing their
certificates of candidacies, still hold on to their public office.
Finally, filing of a Certificate of Candidacy is a partisan political act that ipso facto operates to
consider the candidate deemed resigned from public office pursuant to paragraph 3, Section 11 of R.A. No.
8436, as amended by R.A. No. 9369, as well as Section 66 of the Omnibus Election Code, as amended.
Accordingly, I vote to grant respondent Comelec's Motion for Reconsideration.

NACHURA, J.,dissenting:

I vote to maintain this Court's December 1, 2009 Decision. The automatic resignation
rule on appointive government officials and employees running for elective posts is, to my mind,
unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting the
motion for reconsideration.

80
 I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in
favor of a discriminatory state regulation and disregarding the primacy of the people's fundamental rights to
the equal protection of the laws. EHDCAI
Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition
and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act
(R.A.) No. 9369, Section 66 of the Omnibus Election Code (OEC) and Section 4 (a)
of Commission on Elections (COMELEC) Resolution No. 8678. 1
Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas
filed, on December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case;
(b) Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the Instant Case for Oral
Arguments. 2
On the same date, respondent COMELEC, through its Law Department, moved for the
reconsideration of the aforesaid December 1, 2009 Decision. 3
Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the
2010 elections, filed, on December 17, 2009, his Motion for Leave to Intervene and to Admit the Attached
Motion for Reconsideration in Intervention. 4
On December 28, 2009, the Integrated Bar of the Philippines (IBP),Cebu City Chapter, also filed
its Motion for Leave to Intervene 5 and Motion for Reconsideration in Intervention. 6
In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which
initially represented the COMELEC in the proceedings herein, this time disagreed with the latter, and,
instead of moving for the reconsideration of the December 1, 2009 Decision, moved for clarification of the
effect of our declaration of unconstitutionality. 7
Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January
11, 2010, his Motion to Intervene and for the Reconsideration of the Decision dated December 1, 2009. 8
In its January 12, 2010 Resolution, 9 the Court required petitioners to comment on the aforesaid
motions.
On February 1, 2010, petitioners filed their consolidated comment on the motions.
Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective
office. 10 Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but that
he had recently resigned from his post in the executive department. These developments could very well be
viewed by the Court as having rendered this case moot and academic. However, I refuse to proceed to such
a conclusion, considering that the issues, viewed in relation to other appointive civil servants running for
elective office, remain ubiquitously present. Thus, the issues in the instant case could fall within the
classification of controversies that are capable of repetition yet evading review. cAaETS
I then implore that the Court rule on the motions.
The intervention
The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly
states that motions to intervene may be filed at any time "before the rendition of judgment." 11 Obviously,
as this Court already rendered judgment on December 1, 2009, intervention may no longer be
allowed. 12 The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible, cannot claim to have been
unaware of the pendency of this much publicized case. They should have intervened prior to the rendition of
this Court's Decision on December 1, 2009. To allow their intervention at this juncture is unwarranted and
highly irregular. 13
While the Court has the power to suspend the application of procedural rules, I find no compelling
reason to excuse movants' procedural lapse and allow their much belated intervention. Further, a perusal of
81
their pleadings-in-intervention reveals that they merely restated the points and arguments in the earlier
dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These
very same points, incidentally, also constitute the gravamen of the motion for reconsideration filed by
respondent COMELEC. Thus, even as the Court should deny the motions for intervention, it is necessary to,
pass upon the issues raised therein, because they were the same issues raised in respondent COMELEC's
motion for reconsideration.
The COMELEC's motion for reconsideration
Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than
those already considered and discussed by the Court in the assailed decision. As aforesaid,
the COMELEC merely echoed the arguments of the dissenters.
I remain unpersuaded.
I wish to reiterate the Court's earlier declaration that the second proviso in the third paragraph of
Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4 (a) of COMELEC Resolution No. 8678
are unconstitutional for being violative of the equal protection clause and for being overbroad.
In considering persons holding appointive positions as ipso facto resigned from their posts upon the
filing of their certificates of candidacy (CoCs),but not considering as resigned all other civil servants,
specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is
substantial distinction between the two classes does not justify such disparate treatment. Constitutional law
jurisprudence requires that the classification must and should be germane to the purposes of the law. As
clearly explained in the assailed decision, whether one holds an appointive office or an elective one, the
evils sought to be prevented by the measure remain. Indeed, a candidate, whether holding an appointive or
an elective office, may use his position to promote his candidacy or to wield a dangerous or coercive
influence on the electorate. Under the same scenario, he may also, in the discharge of his official duties, be
swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably
prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that
the "danger of systemic abuse" remains present whether the involved candidate holds an appointive or an
elective office, thus CDHaET
Attempts by government employees to wield influence over others or to make use of their
respective positions (apparently) to promote their own candidacy may seem tolerable even
innocuous particularly when viewed in isolation from other similar attempts by other
government employees. Yet it would be decidedly foolhardy to discount the equally (if not
more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken
together, constitute a veiled effort on the part of a reigning political party to advance its own
agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming
from various levels of the bureaucracy. 14
To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions,
and treating them differently by considering the first as ipso facto resigned while the second as not, is not
germane to the purposes of the law, because, as clearly shown, the measure is not reasonably necessary to,
nor does it necessarily promote, the fulfillment of the state interest sought to be served by the statute.
In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive
ones, exert more coercive influence on the electorate, with the greater tendency to misuse the powers of
their office. This is illustrated by, among others, the proliferation of "private armies" especially in the
provinces. It is common knowledge that "private armies" are backed or even formed by elective officials
precisely for the latter to ensure that the electorate will not oppose them, be cowed to submit to their dictates
and vote for them. To impose a prohibitive measure intended to curb this evil of wielding undue
influence on the electorate and apply the prohibition only on appointive officials is not only downright
ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause.
82
 Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is
overbroad. It covers all civil servants holding appointive posts without distinction, regardless of whether
they occupy positions of influence in government or not. Certainly, a utility worker, a messenger, a
chauffeur, or an industrial worker in the government service cannot exert the same influence as that of a
Cabinet member, an undersecretary or a bureau head. Parenthetically, it is also unimaginable how an
appointive utility worker, compared to a governor or a mayor, can form his own "private army" to wield
undue influence on the electorate. It is unreasonable and excessive, therefore, to impose a blanket
prohibition one intended to discourage civil servants from using their positions to influence the votes
on all civil servants without considering the nature of their positions. Let it be noted, that, despite their
employment in the government, civil servants remain citizens of the country, entitled to enjoy the civil and
political rights granted to them in a democracy, including the right to aspire for elective public office.
In addition, this general provision on automatic resignation is directed to the activity of seeking any
and all public elective offices, whether partisan or nonpartisan in character, whether in the national,
municipal or barangay level. No compelling state interest has been shown to justify such a broad,
encompassing and sweeping application of the law.
It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive
and only available remedy to curb the uncontrolled exercise of undue influence and the feared
"danger of systemic abuse." As we have explained in the assailed decision, our Constitution and our body
of laws are replete with provisions that directly address these evils. We reiterate our earlier pronouncement
that specific evils require specific remedies, not overly broad measures that unduly restrict guaranteed
freedoms. HIaSDc
It should be stressed that when the Court struck down (in the earlier decision) the assailed
provisions, the Court did not act in a manner inconsistent with Section 2 (4) of Article IX-B of
the Constitution, which reads:
Sec. 2. ....
(4) No officer or employee in the civil service shall engage, directly or indirectly, in any
electioneering or partisan political activity.
or with Section 5 (3), Article XVI of the Constitution, which reads:
Sec. 5. ....
(3) Professionalism in the armed forces and adequate remuneration and benefits of its members
shall be a prime concern of the State. The armed forces shall be insulated from partisan
politics.
No member of the military shall engage, directly or indirectly, in any partisan political activity,
except to vote.
Neither does the Court's earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of
the Administrative Code of 1987, which reads:
Sec. 55. Political Activity. No officer or employee in the Civil Service including members
of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take
part in any election except to vote nor shall he use his official authority or influence to coerce
the political activity of any other person or body. Nothing herein provided shall be understood
to prevent any officer or employee from expressing his views on current political problems or
issues, or from mentioning the names of candidates for public office whom he
supports: Provided, That public officers and employees holding political offices may take part
in political and electoral activities but it shall be unlawful for them to solicit contributions from
their subordinates or subject them to any of the acts involving subordinates prohibited in
the Election Code.
83
 "Partisan political activity" includes every form of solicitation of the elector's vote in favor of a
specific candidate. 15 Section 79 (b) of the OEC defines "partisan political activity" as follows:
SEC. 79. Definitions. As used in this Code:
xxx xxx xxx
(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office which
shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons
for the purpose of soliciting votes and/or undertaking any campaign for or
against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign
or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or
against the election of any candidate for public office; DaScAI
(4) Publishing or distributing campaign literature or materials designed to support or
oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the chances of
aspirants for nominations for candidacy to a public office by a political party, aggroupment, or
coalition of parties shall not be considered as election campaign or partisan political activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election
or on attributes of or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any election campaign
or partisan political activity contemplated under this Article.
Given the aforequoted Section 79 (b),it is obvious that the filing of a Certificate of Candidacy
(CoC) for an elective position, while it may be a political activity, is not a "partisan political activity"
within the contemplation of the law.The act of filing is only an announcement of one's intention to run
for office.It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the
election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before the start
of the campaign period, there is yet no candidate whose election or defeat will be promoted. Rosalinda A.
Penera v.Commission on Elections and Edgar T. Andanar 16 instructs that any person who files his CoC
shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a
"candidate," the mere filing of CoC cannot be considered as an "election campaign" or a "partisan political
activity." Section 79 of the OEC does not even consider as "partisan political activity" acts performed for
the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office. Thus,
when appointive civil servants file their CoCs, they are not engaging in a "partisan political activity" and,
therefore, do not transgress or violate the Constitution and the law. Accordingly, at that moment, there is no
valid basis to consider them as ipso facto resigned from their posts.
There is a need to point out that the discussion in Farias v. The Executive Secretary, 17 relative to
the differential treatment of the two classes of civil servants in relation to the ipso facto resignation clause,
is obiter dictum. That discussion is not necessary to the decision of the case, the main issue therein being
the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in the instant case, no
direct challenge was posed in Farias to the constitutionality of the rule on the ipso facto resignation of

84
appointive officials. In any event, the Court en banc, in deciding subsequent cases, can very well reexamine,
as it did in the assailed decision, its earlier pronouncements and even abandon them when perceived to be
incorrect.
Let it also be noted that Mancuso v. Taft 18 is not the heart of the December 1, 2009
Decision. Mancuso was only cited to show that resign-to-run provisions, such as those which are
specifically involved herein, have been stricken down in the United States for unduly burdening First
Amendment rights of employees and voting rights of citizens, and for being overbroad. Verily, in our
jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the contention
that Mancuso has been effectively overturned by subsequent American cases, such as United States Civil
Service Commission v. National Association of Letter Carriers 19 and Broadrick v. State of Oklahoma, 20 is
not controlling.
Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still
applicable. IAcDET
On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of
America v. Mitchell, 21 involve provisions prohibiting Federal employees from engaging in partisan
political activities or political campaigns.
In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch
Act, which reads: "No officer or employee in the executive branch of the Federal Government . . . shall take
any active part in political management or in political campaigns." 22 Among the appellants, only George P.
Poole violated the provision 23 by being a ward executive committeeman of a political party and by being
politically active on election day as a worker at the polls and a paymaster for the services of other party
workers. 24
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act's prohibition against "active participation in political management or
political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and
get federal employees to run for state and local offices, to participate as delegates in party conventions, and
to hold office in a political club. 25
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the
Oklahoma's Merit System of Personnel Administration Act restricting the political activities of the State's
classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of
federal employees. 26 Prior to the commencement of the action, the appellants actively participated in the
1970 reelection campaign of their superior, and were administratively charged for asking other
Corporation Commission employees to do campaign work or to give referrals to persons who might help in
the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in
bulk. 27
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, filed his
candidacy for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston
then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. 28
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal
of Mancuso. Thus, in Magill v. Lynch, 29 the same collegial court which decided Mancuso was so careful in
its analysis that it even remanded the case for consideration on the overbreadth claim. The Magill court
stated thus
Plaintiffs may very well feel that further efforts are not justified, but they should be afforded
the opportunity to demonstrate that the charter forecloses access to a significant number of
offices, the candidacy for which by municipal employees would not pose the possible threats to
85
 government efficiency and integrity which Letter Carriers, as we have interpreted it, deems
significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. 30
As observed by the Court (citing Clements v. Fashing 31 ) in the December 1, 2009 Decision, U.S.
courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to specified
or particular officials, as distinguished from all others, under a classification that is germane to the
purposes of the law.These resign-to-run legislations were not expressed in a general and sweeping
provision,and thus did not violate the test of being germane to the purpose of the law,the second
requisite for a valid classification. Directed, as they were, to particular officials, they were not overly
encompassing as to be overbroad. In fact, Morial v. Judiciary Commission of the State of
Louisiana, 32 where the resign-to-run provision pertaining to judges running for political offices was
upheld, declares that "there is no blanket approval of restriction on the right of public employees to become
candidates for public office." 33 The Morial court instructed thus HTDcCE
Because the judicial office is different in key respects from other offices, the state may regulate
its judges with the differences in mind. For example the contours of the judicial function make
inappropriate the same kind of particularized pledges of conduct in office that are the very stuff
of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should
announce his determination to effect some program, to reach a particular result on some
question of city policy, or to advance the interests of a particular group. It is expected that his
decisions in office may be predetermined by campaign commitment. Not so the candidate for
judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind
himself to decide particular cases in order to achieve a given programmatic result. Moreover,
the judge acts on individual cases and not broad programs. The judge legislates but
interstitially; the progress through the law of a particular judge's social and political
preferences is, in Mr. Justice Holmes' words, "confined from molar to molecular motions."
As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial
Conduct bars candidates for judicial office from making "pledges or promises of conduct in
office other than the faithful and impartial performance of the duties of the office." Candidates
for non-judicial office are not subject to such a ban; in the conduct of his campaign for the
mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with
respect both to issues and personnel, whether publicly or privately, than he would be were he a
candidate for re-election to his judgeship. The state may reasonably conclude that such pledges
and promises, though made in the course of a campaign for non-judicial office, might affect or,
even more plausibly, appear to affect the post-election conduct of a judge who had returned to
the bench following an electoral defeat. By requiring resignation of any judge who seeks a
non-judicial office and leaving campaign conduct unfettered by the restrictions which would be
applicable to a sitting judge, Louisiana has drawn a line which protects the state's interests in
judicial integrity without sacrificing the equally important interests in robust campaigns for
elective office in the executive or legislative branches of government.
This analysis applies equally to the differential treatment of judges and other office holders. A
judge who fails in his bid for a post in the state legislature must not use his judgeship to
advance the cause of those who supported him in his unsuccessful campaign in the legislature.
In contrast, a member of the state legislature who runs for some other office is not expected
upon his return to the legislature to abandon his advocacy of the interests which supported him
during the course of his unsuccessful campaign. Here, too, Louisiana has drawn a line which
rests on the different functions of the judicial and non-judicial office holder. 34
Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is
reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed
decision, the differential treatment in the application of this resign-to-run rule is not germane to the
86
purposes of the law, because whether one holds an appointive office or an elective one, the evils sought
to be prevented are not effectively addressed by the measure. Thus, the ineluctable conclusion that the
concerned provisions are invalid for being unconstitutional.
Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving
an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be
implemented are the other provisions of Philippine laws (not the concerned unconstitutional
provisions) that specifically and directly address the evils sought to be prevented by the measure. It is
highly speculative then to contend that members of the police force or the armed forces, if they will not be
considered as resigned when they file their COCs, is a "disaster waiting to happen." There are, after all,
appropriate laws in place to curb abuses in the government service. DCISAE
The invalidation of the ipso facto resignation provisions does not mean the cessation in
operation of other provisions of the Constitution and of existing laws. Section 2 (4) of Article IX-B and
Section 5 (3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of
the Administrative Code of 1987still apply. So do other statutes, such as the Civil Service Laws, OEC, the
Anti-Graft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related
laws. Covered civil servants running for political offices who later on engage in "partisan political activity"
run the risk of being administratively charged.35 Civil servants who use government funds and property for
campaign purposes, likewise, run the risk of being prosecuted under the Anti-Graft and Corrupt Practices
Act or under the OEC on election offenses. Those who abuse their authority to promote their candidacy
shall be made liable under the appropriate laws. Let it be stressed at this point that the said laws provide
for specific remedies for specific evils, unlike the automatic resignation provisions that are sweeping
in application and not germane to the purposes of the law.
To illustrate, we hypothetically assume that a municipal election officer, who is an employee of
the COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said
election officer is not considered as ipso facto resigned from his post at the precise moment of the filing of
the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a violation of any
provision of the Constitution or any statute. At the start of the campaign period, however, if he is still in the
government service, that is, if he has not voluntarily resigned, and he, at the same time, engages in a
"partisan political activity," then, he becomes vulnerable to prosecution under the Administrative Code,
under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper
action being filed, he could, thus, be disqualified from running for office, or if elected, prevented from
assuming, or if he had already assumed office, be removed from, office.
At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier
cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the proposition
advanced by the majority in the December 1, 2009 Decision. While the provisions on the ipso
facto resignation of appointive civil servants are unconstitutional for being violative of the equal protection
clause and for being overbroad, the general provisions prohibiting civil servants from engaging in "partisan
political activity" remain valid and operational, and should be strictly applied.
The COMELEC's motion for reconsideration should, therefore, be denied.
The OSG's motion for clarification
In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the
concerned ipso facto resignation provisions, the December 1, 2009 Decision intended to allow appointive
officials to stay in office during the entire election period. 36 The OSG points out that the official
spokesperson of the Court explained before the media that "the decision would in effect allow appointive
officials to stay on in their posts even during the campaign period, or until they win or lose or are removed
from office." 37

87
 I pose the following response to the motion for clarification. The language of the December 1,
2009 Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13
of R.A. No. 9369, Section 66 of the OEC and Section 4 (a) of COMELEC Resolution No. 8678. The
Court never stated in the decision that appointive civil servants running for elective posts are allowed
to stay in office during the entire election period. ETaHCD
The only logical and legal effect, therefore, of the Court's earlier declaration of unconstitutionality of
the ipso facto resignation provisions is that appointive government employees or officials who intend to run
for elective positions are not considered automatically resigned from their posts at the moment of filing of
their CoCs. Again, as explained above, other Constitutional and statutory provisions do not cease in
operation and should, in fact, be strictly implemented by the authorities.
Let the full force of the laws apply. Then let the axe fall where it should.
||| (Quinto v. Commission on Elections, G.R. No. 189698 (Resolution), [February 22, 2010])

EN BANC

G.R. No. 192935 December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

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

G.R. No. 193036

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.

DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them.

--- Justice Jose P. Laurel1

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of
government are established, limited and defined, and by which these powers are distributed among the several
departments.2 The Constitution is the basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must defer. 3 Constitutional doctrines must remain
steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call
of situations and much more tailor itself to the whims and caprices of government and the people who run it. 4

88
For consideration before the Court are two consolidated cases 5 both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth
Commission of 2010."

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo
(Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of
the legislative power of Congress under Section 1, Article VI of the Constitution 6 as it usurps the constitutional
authority of the legislature to create a public office and to appropriate funds therefor. 7

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners
Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-
legislators) as incumbent members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when
then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his
slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate
reported cases of graft and corruption allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle
that a public office is a public trust and mandates that public officers and employees, who are servants of the
people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation
of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of
a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples trust
and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and
confidence in the Government and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections "kung walang
corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the evil it
breeds;
89
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of
the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent
collegial body.

SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman.

In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which it will
investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or
employee of the Executive Branch, including government-owned or controlled corporations, to
produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and documents from the Senate and
the House of Representatives records of investigations conducted by committees thereof relating
to matters or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect
to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths
or affirmations as the case may be;

90
 f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure
that the ends of justice be fully served, that such person who qualifies as a state witness under the
Revised Rules of Court of the Philippines be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on
corruption of public officers and employees and their private sector co-principals, accomplices or
accessories, if any, when in the course of its investigation the Commission finds that there is
reasonable ground to believe that they are liable for graft and corruption under pertinent
applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals and other personnel
determined by it as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of
its investigations, proceedings and hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in connection with the
objectives and purposes of this Order.

SECTION 3. Staffing Requirements. x x x.

SECTION 4. Detail of Employees. x x x.

SECTION 5. Engagement of Experts. x x x

SECTION 6. Conduct of Proceedings. x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.

SECTION 8. Protection of Witnesses/Resource Persons. x x x.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative disciplinary action. Any private person who does
the same may be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance to the Commission. x x x.

SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary funds
for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.

SECTION 12. Office. x x x.

91
SECTION 13. Furniture/Equipment. x x x.

SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or before
December 31, 2012.

SECTION 15. Publication of Final Report. x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is
a need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall
not affect the validity and effectivity of the other provisions hereof.

SECTION 19. Effectivity. This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc
body formed under the Office of the President with the primary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and thereafter to submit its finding and recommendations to the
President, Congress and the Ombudsman. Though it has been described as an "independent collegial body," it is
essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes
a public office, as an ad hoc body is one.8

To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate,
arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect
and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it
has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it
cannot determine from such facts if probable cause exists as to warrant the filing of an information in our courts
of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions.

The PTC is different from the truth commissions in other countries which have been created as official,
transitory and non-judicial fact-finding bodies "to establish the facts and context of serious violations of human
rights or of international humanitarian law in a countrys past."9 They are usually established by states emerging
from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.

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Truth commissions have been described as bodies that share the following characteristics: (1) they examine
only past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a
particular event; (3) they are temporary bodies that finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the
State.10"Commissions members are usually empowered to conduct research, support victims, and propose
policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may
aim to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the
way for prosecutions and recommend institutional reforms."11

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals
are examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against
humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the
principal function of which was to heal the wounds of past violence and to prevent future conflict by providing
a cathartic experience for victims.

The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than on
judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators. As
one writer12 puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: "To those who talk about reconciliation, if they mean that they would like us to simply forget about the
wrongs that they have committed in the past, we have this to say: There can be no reconciliation without justice.
When we allow crimes to go unpunished, we give consent to their occurring over and over again."

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized them
in the following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the
Office of the President to achieve economy, simplicity and efficiency does not include the power to
create an entirely new public office which was hitherto inexistent like the "Truth Commission."

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar
species even as it excludes those of the other administrations, past and present, who may be indictable.

(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general
international practice of four decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms part of the generally accepted
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 principles of international law which the Philippines is mandated to adhere to pursuant to the
Declaration of Principles enshrined in the Constitution.

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.

(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of
an executive issuance or even a statute."13

In their Consolidated Comment,14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the assailed executive
order with the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the Presidents
executive power and power of control necessarily include the inherent power to conduct investigations
to ensure that laws are faithfully executed and that, in any event, the Constitution, Revised
Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as amended by
P.D. No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize the President to create or form
such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-
judicial body and its functions do not duplicate, supplant or erode the latters jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and presidential issuances
creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative
Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO) by President Ferdinand E. Marcos.18

From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved:

1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection clause; and

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 5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to
ascertain whether the requisites for a valid exercise of its power of judicial review are present.

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 the standing to question 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.19

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not shown that
they have sustained or are in danger of sustaining any personal injury attributable to the creation of the PTC.
Not claiming to be the subject of the commissions investigations, petitioners will not sustain injury in its
creation or as a result of its proceedings.20

The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail
Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a
body to which they belong as members. This certainly justifies their resolve to take the cudgels for Congress as
an institution and present the complaints on the usurpation of their power and rights as members of the
legislature before the Court. As held in Philippine Constitution Association v. Enriquez,21

To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a
resort to the courts.

Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official
action which, to their mind, infringes on their prerogatives as legislators. 22

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the
PTC and the budget for its operations.23 It emphasizes that the funds to be used for the creation and operation of
the commission are to be taken from those funds already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail congressional action but will simply be an exercise of
the Presidents power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any
personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere in his petition
is an assertion of a clear right that may justify his clamor for the Court to exercise judicial power and to wield

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the axe over presidential issuances in defense of the Constitution. The case of David v. Arroyo 24 explained the
deep-seated rules on locus standi. Thus:

Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits,
standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of
Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of
the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiffs
standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right"
in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or taxpayer." In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the
securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in
a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, howeverthe
people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayers suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with
which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the
United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later
reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power
to determine the validity of an executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general interest common to all
members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have "a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations
omitted]

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can
be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest
so requires, such as when the matter is of transcendental importance, of overreaching significance to society, or
of paramount public interest."25

Thus, in Coconut Oil Refiners Association, Inc. v. Torres, 26 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be relaxed and a
suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,27 ordinary citizens and taxpayers were allowed to question the
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constitutionality of several executive orders although they had only an indirect and general interest shared in
common with the public.

The OSG claims that the determinants of transcendental importance28 laid down in CREBA v. ERC and
Meralco29are non-existent in this case. The Court, however, finds reason in Biraogos assertion that the petition
covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There are
constitutional issues in the petition which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only to
the public but also to the Bench and the Bar, they should be resolved for the guidance of all. 30 Undoubtedly, the
Filipino people are more than interested to know the status of the Presidents first effort to bring about a
promised change to the country. The Court takes cognizance of the petition not due to overwhelming political
undertones that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to perform
its constitutional duty to settle legal controversies with overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not
merely an adjunct body of the Office of the President. 31 Thus, in order that the President may create a public
office he must be empowered by the Constitution, a statute or an authorization vested in him by law. According
to petitioner, such power cannot be presumed32 since there is no provision in the Constitution or any specific
law that authorizes the President to create a truth commission.33 He adds that Section 31 of the Administrative
Code of 1987, granting the President the continuing authority to reorganize his office, cannot serve as basis for
the creation of a truth commission considering the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish."34 Insofar as it vests in the President the plenary power to
reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with the
principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the
effectivity thereof.35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the
province of Congress and not with the executive branch of government. They maintain that the delegated
authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does not
permit the President to create a public office, much less a truth commission; 2) is limited to the reorganization
of the administrative structure of the Office of the President; 3) is limited to the restructuring of the internal
organs of the Office of the President Proper, transfer of functions and transfer of agencies; and 4) only to
achieve simplicity, economy and efficiency.36 Such continuing authority of the President to reorganize his office
is limited, and by issuing Executive Order No. 1, the President overstepped the limits of this delegated
authority.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-
finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that
the authority of the President to create public offices within the Office of the President Proper has long been
recognized.37 According to the OSG, the Executive, just like the other two branches of government, possesses
the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally
mandated functions and in the exercise of its administrative functions. 38 This power, as the OSG explains it, is
but an adjunct of the plenary powers wielded by the President under Section 1 and his power of control under
Section 17, both of Article VII of the Constitution.39

It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his department and
in the exercise of his authority to assume directly the functions of the executive department, bureau and office,
or interfere with the discretion of his officials. 40 The power of the President to investigate is not limited to the
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exercise of his power of control over his subordinates in the executive branch, but extends further in the
exercise of his other powers, such as his power to discipline subordinates, 41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed on matters which he is entitled to know.43

The OSG also cites the recent case of Banda v. Ermita, 44 where it was held that the President has the power to
reorganize the offices and agencies in the executive department in line with his constitutionally granted power
of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under
existing statutes.

Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the
OSG, the President may create the PTC in order to, among others, put a closure to the reported large scale graft
and corruption in the government.45

The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power
to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; (2) transferring any function under the Office of the President to
any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to
any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent but a modification or alteration thereof has to be
effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly,
the answer to the question is in the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced
supposition, even in the plainest meaning attributable to the term "restructure" an "alteration of an existing
structure." Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment
of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary, 46

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very source of the power that which
constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we
ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions." It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the
President. Hence, it is subject to the Presidents continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter. 47 Clearly, the
power of control is entirely different from the power to create public offices. The former is inherent in the
Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to
faithfully execute the laws.

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The question is this, is there a valid delegation of power from Congress, empowering the President to create a
public office?

According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory
basis under P.D. 1416, as amended by P.D. No. 1772.48 The said law granted the President the continuing
authority to reorganize the national government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I,
Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary.49

The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public
office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure of the national government
including the power to create offices and transfer appropriations pursuant to one of the purposes of the decree,
embodied in its last "Whereas" clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the
organization of the national government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No.
1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General
agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416
says "it was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form
of government, the legislative and executive powers are fused, correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that
P.D. 1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is
deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by
P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. The Presidents power to conduct investigations to aid
him in ensuring the faithful execution of laws in this case, fundamental laws on public accountability and
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transparency is inherent in the Presidents powers as the Chief Executive. That the authority of the President
to conduct investigations and to create bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such authority. 51 As explained in the landmark case
of Marcos v. Manglapus:52

x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct
branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain to
the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the President other powers that do
not involve the execution of any provision of law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
of specific powers of the President, it maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum of specific
powers so enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has
to be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above,
the powers of the President are not limited to those specific powers under the Constitution. 53 One of the
recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v. Camposano,54 the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of medicines was upheld. In said
case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and employees faithfully comply with the law.
With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact
that the investigating team and the PCAGC had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into
matters which the President is entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to
be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to declare such executive power as non-existent
just because the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the
operation of a public office, suffice it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the
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Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of the Solicitor General, "whatever funds
the Congress has provided for the Office of the President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.

Power of the Truth Commission to Investigate

The Presidents power to conduct investigations to ensure that laws are faithfully executed is well recognized. It
flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. 56 As the
Chief Executive, the president represents the government as a whole and sees to it that all laws are enforced by
the officials and employees of his department. He has the authority to directly assume the functions of the
executive department.57

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption
and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been vested in the
said body as it cannot adjudicate rights of persons who come before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and
to decide in accordance with the standards laid down by law itself in enforcing and administering the same
law."58 In simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it
is exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of
administrative agencies.

The distinction between the power to investigate and the power to adjudicate was delineated by the Court in
Cario v. Commission on Human Rights.59 Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated
is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of
the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does
not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to
a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And
"adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or
grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle
or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a
judgment." [Italics included. Citations Omitted]

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Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at
factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by law. 60 Even respondents themselves admit that the
commission is bereft of any quasi-judicial power.61

Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the
overall task of the commission to conduct a fact-finding investigation."62 The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against them,63 is certainly not a function given to
the commission. The phrase, "when in the course of its investigation," under Section 2(g), highlights this fact
and gives credence to a contrary interpretation from that of the petitioners. The function of determining
probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.64

At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared with
other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is
not exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges
of municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on
charges against public employees and officials is likewise concurrently shared with the Department of Justice.
Despite the passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction
with the Office of the President and the local Sanggunians to investigate complaints against local elective
officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases
under Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its
primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the
investigation of such cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary
investigation or the determination of the existence of probable cause. This is categorically out of the PTCs
sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the
President in the performance of his duties relative to the execution and enforcement of the laws of the land. In
this regard, the PTC commits no act of usurpation of the Ombudsmans primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in
the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked
to investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded
conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the
Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman
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and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC
for possible indictments for violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the President, the Court
finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression
of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution.
Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They
contend that it does not apply equally to all members of the same class such that the intent of singling out the
"previous administration" as its sole object makes the PTC an "adventure in partisan hostility." 66 Thus, in order
to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. 67

The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass
acts committed not only during the administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and anomalies"68 were reported to have been
committed against the Filipino people. They assail the classification formulated by the respondents as it does
not fall under the recognized exceptions because first, "there is no substantial distinction between the group of
officials targeted for investigation by Executive Order No. 1 and other groups or persons who abused their
public office for personal gain; and second, the selective classification is not germane to the purpose of
Executive Order No. 1 to end corruption."69 In order to attain constitutional permission, the petitioners advocate
that the commission should deal with "graft and grafters prior and subsequent to the Arroyo administration with
the strong arm of the law with equal force."70

Position of respondents

According to respondents, while Executive Order No. 1 identifies the "previous administration" as the initial
subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale
graft and corruption solely during the said administration. 71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration, the petitioners argue that no offense is
committed against the equal protection clause for "the segregation of the transactions of public officers during
the previous administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for
the determination of the truth regarding certain reports of large scale graft and corruption in the government and
to put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the peoples faith and confidence in the Government and in their public
servants.

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Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality
that unlike with administrations long gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.

Third. The classification of the previous administration as a separate class for investigation lies in the reality
that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed,
are more easily established in the regime that immediately precede the current administration.

Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure
to issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping
by a nascent administration like the Presidential Commission on Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created by
former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent
citizens committee to investigate all the facts and circumstances surrounding "Philippine Centennial projects"
of his predecessor, former President Fidel V. Ramos.73 [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.74

"According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed."75 It "requires public
bodies and institutions to treat similarly situated individuals in a similar manner."76 "The purpose of the equal
protection clause is to secure every person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper execution through the
states duly constituted authorities."77 "In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."78

The equal protection clause is aimed at all official state actions, not just those of the legislature. 79 Its inhibitions
cover all the departments of the government including the political and executive departments, and extend to all
actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken. 80

It, however, does not require the universal application of the laws to all persons or things without distinction.
What it simply requires is equality among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however, to be valid must pass the test
of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. 81 "Superficial differences do not make for a valid
classification."82

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For a classification to meet the requirements of constitutionality, it must include or embrace all persons who
naturally belong to the class.83 "The classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those
covered by the classification are to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially distinguishable from all others, does not
justify the non-application of the law to him."84

The classification must not be based on existing circumstances only, or so constituted as to preclude addition to
the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall
into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union 85 and reiterated in a
long line of cases,86

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require
that things which are different in fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that
it must apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.
[Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal
protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during the previous administration"87 only. The intent to
single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any, during the previous administration; and

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thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.

SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a
class of past administrations. It is not a class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation
clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in the Arroyo administration cannot be
taken as basis for distinguishing said administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo
administration. As Justice Isagani Cruz put it, "Superficial differences do not make for a valid classification." 88

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended
investigation to the previous administration only. The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the commission and lead it to lose its
effectiveness."89 The reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it breeds."90

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the
earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and cases
which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC expected
to conduct simultaneous investigations of previous administrations, given the bodys limited time and resources.
"The law does not require the impossible" (Lex non cogit ad impossibilia).91

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a centurys worth of graft cases. However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down
for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins, 92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is
of the considered view that although its focus is restricted, the constitutional guarantee of equal protection under
the laws should not in any way be circumvented. The Constitution is the fundamental and paramount law of the
nation to which all other laws must conform and in accordance with which all private rights determined and all
public authority administered.93 Laws that do not conform to the Constitution should be stricken down for being
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unconstitutional.94 While the thrust of the PTC is specific, that is, for investigation of acts of graft and
corruption, Executive Order No. 1, to survive, must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of "substantial distinctions" would only confirm the petitioners
lament that the subject executive order is only an "adventure in partisan hostility." In the case of US v.
Cyprian,95 it was written: "A rather limited number of such classifications have routinely been held or assumed
to be arbitrary; those include: race, national origin, gender, political activity or membership in a political
party, union activity or membership in a labor union, or more generally the exercise of first amendment rights."

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. 96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number included within a class, but must be
of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and
which are indistinguishable from those of the members of the class must be brought under the influence of the
law and treated by it in the same way as are the members of the class."97

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal
protection clause."98 "Legislation is not unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach."99 It has been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply because it happens to be incomplete.100 In several
instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where the
purpose can be attained in future legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not run the risk of losing the entire
remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."102

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out
was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act,
event or report to be focused on unlike the investigative commissions created in the past. "The equal protection
clause is violated by purposeful and intentional discrimination."103

To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the commission
does not only confine itself to cases of large scale graft and corruption committed during the previous
administration.104 The OSG points to Section 17 of Executive Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of
investigations of the PTC so as to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the future. Such expanded mandate of the
commission will still depend on the whim and caprice of the President. If he would decide not to include them,
the section would then be meaningless. This will only fortify the fears of the petitioners that the Executive
Order No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of the Arroyo
administration."105

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,106 that the
"PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause."
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The decision, however, was devoid of any discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its
constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but it seems that the present political
situation calls for it to once again explain the legal basis of its action lest it continually be accused of being a
hindrance to the nations thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with
Judicial Power that "includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave of abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare
a treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the duty to rule on the constitutionality of
the application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on
one hand, and the two co-equal bodies of government, on the other. Many times the Court has been accused of
asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: "And
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them."107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body
but rather simply making sure that any act of government is done in consonance with the authorities and rights
allocated to it by the Constitution. And, if after said review, the Court finds no constitutional violations of any
sort, then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all geared towards the
betterment of the nation and its people. But then again, it is important to remember this ethical principle: "The
end does not justify the means." No matter how noble and worthy of admiration the purpose of an act, but if the
means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot
still be allowed.108 The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be
allowed to sap its strength nor greed for power debase its rectitude."109

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Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present
administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations
would allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches of
the government, it is the judiciary which is the most interested in knowing the truth and so it will not allow itself
to be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth
must be within constitutional bounds for "ours is still a government of laws and not of men."110

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of
Executive Order No. 1.

SO ORDERED.

SEPARATE OPINION

CORONA, C.J.:

Of Truth and Truth Commissions

The fundamental base upon which a truth commission is created is the right to the truth. 1 While the right to the
truth is yet to be established as a right under customary law2 or as a general principle of international law,3 it has
nevertheless emerged as a "legal concept at the national, regional and international levels, and relates to the
obligation of the state to provide information to victims or to their families or even society as a whole about the
circumstances surrounding serious violations of human rights."4

A truth commission has been generally defined5 as a "body set up to investigate a past history of violations of
human rights in a particular country ...,"6 and includes four elements:

... First, a truth commission focuses on the past. Second, a truth commission is not focused on a specific event,
but attempts to paint the overall picture of certain human rights abuses, or violations of international
humanitarian law, over a period of time. Third, a truth commission usually exists temporarily and for a pre-
defined period of time, ceasing to exist with the submission of a report of its findings. Finally, a truth
commission is always vested with some sort of authority, by way of its sponsor, that allows it greater access to
information, greater security or protection to dig into sensitive issues, and a greater impact with its report. 7

As reported by Amnesty International,8 there are at least 33 truth commissions established in 28 countries from
1974 to 2007 and this includes the Philippines, which created the Presidential Committee on Human Rights
(PCHR) in 1986 under the post-Marcos administration of Pres. Corazon C. Aquino.

The Philippine Experience

Notably, Pres. Corazon C. Aquino created not one but two truth commissions. 9 Aside from the PCHR, which
was created to address human rights violations, the Presidential Commission on Good Government or PCGG
was also established. The PCGG was tasked with assisting the President in the "recovery of all in-gotten wealth
accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his administration, directly or through nominees,
by taking undue advantage of their public office and/or using their powers, authority, influence, connections or
relationship," among others.10 Unlike the present embattled and controversial Truth Commission, however, the
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PCGG was created by Pres. Corazon C. Aquino pursuant to her legislative powers under Executive Order No.
1,11 which in turn, was sanctioned by Proclamation No. 3.12

And unlike the PCGG, the present Truth Commission suffers from both legal and constitutional infirmities and
must be struck down as unconstitutional.

Power To Create Public Offices: Inherently Legislative

The separation of powers is a fundamental principle in our system of government. 13 This principle is one of the
cornerstones of our constitutional democracy and it cannot be eroded without endangering our
government.14The 1987 Constitution divides governmental power into three co-equal branches: the executive,
the legislative and the judicial. It delineates the powers of the three branches: the legislature is generally limited
to the enactment of laws, the executive department to the enforcement of laws and the judiciary to their
interpretation and application to cases and controversies.15 Each branch is independent and supreme within its
own sphere and the encroachment by one branch on another is to be avoided at all costs.

The power under scrutiny in this case is the creation of a public office. It is settled that, except for the offices
created by the Constitution, the creation of a public office is primarily a legislative function. The legislature
decides what offices are suitable, necessary or convenient for the administration of government. 16

The question is whether Congress, by law, has delegated to the Chief Executive this power to create a public
office.

In creating the Truth Commission, Executive Order No. 1 (E.O. No. 1) points to Section 31, Chapter 10, Book
III of E.O. No. 292 or the Administrative Code of 1987 as its legal basis:

Section 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating, or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies. (Emphasis supplied)

This provision pertains to the Presidents continuing delegated power to reorganize the Office of the President.
The well-settled principle is that the President has the power to reorganize the offices and agencies in the
executive department in line with his constitutionally granted power of control over executive offices and by
virtue of his delegated legislative power to reorganize them under existing statutes. 17 Needless to state, such
power must always be in accordance with the Constitution, relevant laws and prevailing jurisprudence. 18

In creating the Truth Commission, did the President merely exercise his continuing authority to reorganize the
executive department? No.

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Considering that the President was exercising a delegated power, his actions should have conformed to the
standards set by the law, that is, that the reorganization be in the interest of "simplicity, economy and
efficiency." Were such objectives met? They were not. The Truth Commission clearly duplicates and supplants
the functions and powers of the Office of the Ombudsman and/or the Department of Justice, as will be
discussed in detail later. How can the creation of a new commission with the same duplicative functions as
those of already existing offices result in economy or a more efficient bureaucracy? 19 Such a creation becomes
even more questionable considering that the 1987 Constitution itself mandates the Ombudsman to investigate
graft and corruption cases.20

The Truth Commission in the Light of The Equal Protection Clause

Equal protection is a fundamental right guaranteed by the Constitution. Section 1, Article III of the 1987
Constitution reads:

... nor shall any person be denied the equal protection of the laws.

It is a right afforded every man. The right to equal protection does not require a universal application of the
laws to all persons or things without distinction.21 It requires simply that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed. 22

In certain cases, however, as when things or persons are different in fact or circumstance, they may be treated in
law differently.23 In Victoriano vs. Elizalde Rope Workers Union,24 the Court declared:

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that
it must apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.

Thus, for a classification to be valid it must pass the test of reasonableness, 25 which requires that:

(1) it be based on substantial distinctions;

(2) it must be germane to the purpose of the law;

(3) it must not be limited to present conditions; and

(4) it must apply equally to all members of the same class.

All four requisites must be complied with for the classification to be valid and constitutional.

The constitutionality of E. O. No. 1 is being attacked on the ground that it violates the equal protection clause.

Petitioners argue that E.O. No. 1 violates the equal protection clause as it deliberately vests the Truth
Commission with jurisdiction and authority to solely target officials and employees of the Arroyo
Administration.26Moreover, they claim that there is no substantial distinction of graft reportedly committed

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under the Arroyo administration and graft committed under previous administrations to warrant the creation of a
Truth Commission which will investigate for prosecution officials and employees of the past administration. 27

Respondents, on the other hand, argue that the creation of the Truth Commission does not violate the equal
protection clause. According to them, while E.O. No. 1 names the previous administration as the initial subject
of the investigation, it does not confine itself to cases of graft and corruption committed solely during the past
administration. Section 17 of E.O. No. 1 clearly speaks of the Presidents power to expand its coverage to
previous administrations. Moreover, respondents argue that the segregation of the transactions of public officers
during the previous administration as possible subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the executive order seeks to correct. 28

On its face, E.O. No. 1 clearly singles out the previous administration as the Truth Commissions sole subject of
investigation.

Section 1. Creation of a Commission There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION", which shall primarily seek and find the truth on, and toward this
end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people committed by public officers and employees, their co-principals, accomplices
and accessories from the private sector, if any during the previous administration; and thereafter recommend the
appropriate action to be taken to ensure that the full measure of justice shall be served without fear or favor.

Section 2. Powers and Functions. The Commission, which shall have the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any during the previous administration and thereafter submit its findings and recommendations to the President,
Congress and the Ombudsman. x x x" (Emphasis supplied)

Notwithstanding Section 17, which provides:

If and when in the judgment of the President there is a need to expand the mandate of the Commission as
defined in Section 1 hereof to include the investigation of cases and instances of graft and corruption during the
prior administration, such mandate may be so extended accordingly by way of supplemental Executive Order."
(Emphasis supplied),

such expanded mandate of the Truth Commission will still depend on the whim and caprice of the President. If
the President decides not to expand the coverage of the investigation, then the Truth Commissions sole
directive is the investigation of officials and employees of the Arroyo administration.

Given the indubitably clear mandate of E.O. No. 1, does the identification of the Arroyo administration as the
subject of the Truth Commissions investigation pass the jurisprudential test of reasonableness? Stated
differently, does the mandate of E.O. No. 1 violate the equal protection clause of the Constitution? Yes.

I rule in favor of petitioners.

(1) No Substantial Distinction

There is no substantial distinction between the corruption which occurred during the past administration and the
corruption of the administrations prior to it. Allegations of graft and corruption in the government are
unfortunately prevalent regardless of who the President happens to be. Respondents claim of widespread
systemic corruption is not unique only to the past administration.
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(2) Not Germane to the Purpose of the Law

The purpose of E.O. No. 1 (to put an end to corruption in the government) is stated clearly in the preamble of
the aforesaid order:

WHEREAS, the Presidents battle-cry during his campaign for the Presidency in the last elections "kung
walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the
evil it breeds; xxx

In the light of the unmistakable purpose of E.O. No. 1, the classification of the past regime as separate from the
past administrations is not germane to the purpose of the law. Corruption did not occur only in the past
administration. To stamp out corruption, we must go beyond the faade of each administration and investigate
all public officials and employees alleged to have committed graft in any previous administration.

(3) E.O. No. 1 does Not Apply to Future Conditions

As correctly pointed out by petitioners, the classification does not even refer to present conditions, much more
to future conditions vis-avis the commission of graft and corruption. It is limited to a particular past
administration and not to all past administrations. 29

We go back to the text of the executive order in question.

xxx

Whereas, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases if graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

xxx

Section 1. Creating of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION", which shall primarily seek and find the truth on, and toward this
end investigate reports of graft and corruption, x x x if any, during the previous administration; xxx

Section 2. Power and Functions. Powers and Functions. The Commission, which shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption x x x, if any,
during the previous administration and thereafter submit its findings and recommendations to the President,
Congress and the Ombudsman. x x x

The above-quoted provisions show that the sole subject of the investigation will be public officers and
employees of the previous administration only, that is, until such time if and when the President decides to
expand the Truth Commissions mandate to include other administrations (if he does so at all).

(4) E.O. No. 1 Does Not Apply to the Same Class

Lastly, E.O. No. 1 does not apply to all of those belonging to the same class for it only applies to the public
officers and employees of the past administration. It excludes from its purview the graft and the grafters of
administrations prior to the last one. Graft is not exclusive to the previous presidency alone, hence there is no
justification to limit the scope of the mandate only to the previous administration.

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Fact-Finding or Investigation?

The nature of the powers and functions allocated by the President to the Truth Commission by virtue of E.O.
No. 1 is investigatory,30 with the purposes of determining probable cause of the commission of "graft and
corruption under pertinent applicable laws" and referring such finding and evidence to the proper authorities for
prosecution.31

The respondents pass off these powers and functions as merely fact-finding, short of investigatory. I do not
think so. Sugar-coating the description of the Truth Commissions processes and functions so as to make it
"sound harmless" falls short of constitutional requirements. It has in its hands the vast arsenal of the government
to intimidate, harass and humiliate its perceived political enemies outside the lawful prosecutorial avenues
provided by law in the Ombudsman or the Department of Justice.

The scope of the investigatory powers and functions assigned by the President to the Truth Commission
encompasses all "public officers and employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration."32

There is no doubt in my mind that what the President granted the Truth Commission is the authority to conduct
preliminary investigation of complaints of graft and corruption against his immediate predecessor and her
associates.

The respondents see nothing wrong with that. They believe that, pursuant to his power of control and general
supervision under Article VII of the Constitution,33 the President can create an ad-hoc committee like the Truth
Commission to investigate graft and corruption cases. And the President can endow it with authority parallel to
that of the Ombudsman to conduct preliminary investigations. Citing Ombudsman v. Galicia34 the power of the
Ombudsman to conduct preliminary investigations is not exclusive but shared with other similarly authorized
government agencies.

I take a different view. The operative word is "authorized".

Indeed, the power of control and supervision of the President includes the power to discipline which in turn
implies the power to investigate.35 No Congress or Court can derogate from that power36 but the Constitution
itself may set certain limits.37 And the Constitution has in fact carved out the preliminary investigatory aspect of
the control power and allocated the same to the following:

(a) to Congress over presidential appointees who are impeachable officers (Article XI, Sections 2 and 3);

(b) to the Supreme Court over members of the courts and the personnel thereof (Article VIII, Section 6);
and

(c) to the Ombudsman over any other public official, employee, office or agency (Article XI, Section 13
(1)).

However, even as the Constitution has granted to the Ombudsman the power to investigate other public officials
and employees, such power is not absolute and exclusive. Congress has the power to further define the powers
of the Ombudsman and, impliedly, to authorize other offices to conduct such investigation over their respective
officials and personnel.38

The Constitution has vested in Congress alone the power to grant to any office concurrent jurisdiction
with the Ombudsman to conduct preliminary investigation of cases of graft and corruption.

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In a myriad of cases, this Court has recognized the concurrent jurisdiction of other bodies vis--vis the
Ombudsman to conduct preliminary investigation of complaints of graft and corruption as authorized by law,
meaning, for any other person or agency to be able to conduct such investigations, there must be a law
authorizing him or it to do so.

In Ombudsman v. Galicia (cited in the ponencia) as well as Ombudsman v. Estandarte,39 the Court recognized
the concurrent jurisdiction of the Division School Superintendent vis--vis the Ombudsman to conduct
preliminary investigation of complaints of graft and corruption committed by public school teachers. Such
concurrent jurisdiction of the Division School Superintendent was granted by law, specifically RA 4670 or
the Magna Carta for Public School Teachers.40

Likewise, in Ombudsman v. Medrano41 the Court held that by virtue of RA 4670 the Department of Education
Investigating Committee has concurrent jurisdiction with the Ombudsman to conduct a preliminary
investigation of complaints against public school teachers.

Even the Sangguniang Panlungsod has concurrent jurisdiction with the Ombudsman to look into complaints
against the punong barangay.42 Such concurrent authority is found in RA 7160 or the Local Government Code.

The Department of Justice is another agency with jurisdiction concurrent with the Ombudsman to conduct
preliminary investigation of public officials and employees. 43 Its concurrent jurisdiction is based on the 1987
Administrative Code.

Certainly, there is a law, the Administrative Code, which authorized the Office of the President to exercise
jurisdiction concurrent with the Ombudsman to conduct preliminary investigation of graft and corruption cases.
However, the scope and focus of its preliminary investigation are restricted. Under the principle that the power
to appoint includes the power to remove, each President has had his or her own version of a presidential
committee to investigate graft and corruption, the last being President Gloria Macapagal Arroyos Presidential
Anti-Graft Commission (PAGC) under E.O. No. 268. The PAGC exercised concurrent authority with the
Ombudsman to investigate complaints of graft and corruption against presidential appointees who are not
impeachable officers and non-presidential appointees in conspiracy with the latter. It is in this light that DOH v.
Camposano, et al.44 as cited in the ponencia should be understood. At that time, the PCAGC (now defunct) had
no investigatory power over non-presidential appointees; hence the President created an ad-hoc committee to
investigate both the principal respondent who was a presidential appointee and her co-conspirators who were
non-presidential appointees. The PAGC (now also defunct), however, was authorized to investigate both
presidential appointees and non-presidential appointees who were in conspiracy with each other.

However, although pursuant to his power of control the President may supplant and directly exercise the
investigatory functions of departments and agencies within the executive department,45 his power of control
under the Constitution and the Administrative Code is confined only to the executive department. 46 Without any
law authorizing him, the President cannot legally create a committee to extend his investigatory reach across the
boundaries of the executive department to "public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration" without setting apart those who
are still in the executive department from those who are not. Only the Ombudsman has the investigatory
jurisdiction over them under Article XI, Section 13. There is no law granting to the President the authority to
create a committee with concurrent investigatory jurisdiction of this nature.

The President acted in violation of the Constitution and without authority of law when he created a Truth
Commission under E.O. No. 1 to exercise concurrent jurisdiction with the Ombudsman to conduct the
preliminary investigation of complaints of graft and corruption against public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any, during the previous administration.

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Investigation or Quasi-Adjudication?

Respondents argue that the Truth Commission is merely an investigative and fact-finding body tasked to gather
facts, draw conclusions therefrom and recommend the appropriate actions or measures to be taken. Petitioners,
however, argue that the Truth Commission is vested with quasi-judicial powers. Offices with such awesome
powers cannot be legally created by the President through mere executive orders.

Petitioners are correct.

The definition of investigation was extensively discussed in Cario v. Commission on Human Rights: 47

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated
is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of
the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does
not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."48 (Italics in the original)

The exercise of quasi-judicial power goes beyond mere investigation and fact-finding. Quasi-judicial power has
been defined as

the power of the administrative agency to adjudicate the rights of persons before it. It is the power to hear
and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the
standards laid down by the law itself in enforcing and administering the same law. The administrative body
exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an
executive or administrative nature, where the power to act in such manner is incidental to or reasonably
necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-
judicial functions the administrative officers or bodies are required to investigate facts or ascertain the existence
of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and
exercise of discretion in a judicial nature.49 (Emphasis supplied)

Despite respondents denial that the Truth Commission is infused with quasi-judicial powers, it is patent from
the provisions of E.O. No. 1 itself that such powers are indeed vested in the Truth Commission, particularly in
Section 2, paragraphs (b) and (g):

b) Collect, receive, review, and evaluate evidence related to or regarding the cases of large scale corruption
which it has chosen to investigate,

xxx

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by
means of a special or interim report and recommendation, all evidence on corruption of public officers and
employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its

116
investigation the Commission finds that there is reasonable ground to believe they are liable for graft and
corruption under pertinent applicable laws;

xxx

The powers to "evaluate evidence" and "find reasonable ground to believe that someone is liable for graft and
corruption" are not merely fact-finding or investigatory. These are quasi-judicial in nature because they actually
go into the weighing of evidence, drawing up of legal conclusions from them as basis for their official action
and the exercise of discretion of a judicial or quasi-judicial nature.

The evaluation of the sufficiency of the evidence is a quasi-judicial/judicial function. It involves an assessment
of the evidence which is an exercise of judicial discretion. We have defined discretion

as the ability to make decisions which represent a responsible choice and for which an understanding of what is
lawful, right or wise may be presupposed.50

It is the "the act or the liberty to decide, according to the principles of justice and ones ideas of what is right
and proper under the circumstances, without willfulness or favor."51

Likewise, the power to establish if there is reasonable ground to believe that certain persons are liable for graft
and corruption under pertinent applicable laws is quasi-judicial in nature because it is akin to the discretion
exercised by a prosecutor in the determination of probable cause during a preliminary investigation. It involves
a judicial (or quasi-judicial) appraisal of the facts for the purpose of determining if a violation has in fact been
committed.

Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial
court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning
the commission of the crime with the end in view of determining whether or not an information may be
prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the
merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the
trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been
called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be
heard and for, the production and weighing of evidence, and a decision is rendered thereon.

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary
investigation is no less than that of a municipal judge or even a regional trial court judge. While the
investigating officer, strictly speaking is not a "judge," by the nature of his functions he is and must be
considered to be a quasi judicial officer.52

Hence, the Truth Commission is vested with quasi-judicial discretion in the discharge of its functions.

As a mere creation of the executive and without a law granting it the power to investigate person and agencies
outside the executive department, the Truth Commission can only perform administrative functions, not quasi-
judicial functions. "Administrative agencies are not considered courts; they are neither part of the judicial
system nor are they deemed judicial tribunals."53

Executive Order No. 1 and the Philippine Truth Commission of 2010, being contrary to the Constitution, should
be nullified.

I therefore vote that the petitions be GRANTED.

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SEPARATE OPINION

BRION, J.:

I concur, through this Separate Opinion, with the conclusion that the Executive Order No. 1 (EO 1 or EO)
creating the Truth Commission is fatally defective and thus should be struck down.

I base my conclusion:

(1) On due process grounds;

(2) On the unconstitutional impact of the EO on the established legal framework of the criminal justice
system;

(3) On the violation of the rule on separation of powers;

(4) On the violations of the personal rights of the investigated persons and their constitutional right to a
fair trial;1 and

(5) On the violation of the equal protection clause.

Two inter-related features of the EO primarily contribute to the resulting violations. The first is the use of the
title Truth Commission, which, as used in the EO, is fraught with hidden and prejudicial implications beyond
the seemingly simple truth that purportedly characterizes the Commission. The second relates to the truth-
telling function of the Truth Commission under the terms of the EO. Together, these features radiate outwards
with prejudicial effects, resulting in the above violations.

The full disclosure of the truth about irregular and criminal government activities, particularly about graft and
corruption, is a very worthy ideal that those in government must fully support; the ideal cannot be disputed,
sidetracked or much less denied. It is a matter that the Constitution itself is deeply concerned about as shown by
Article XI on Accountability of Public Officers.

This concern, however, co-exists with many others and is not the be-all and end-all of the Charter. The means
and manner of addressing this constitutional concern, for example, rate very highly in the hierarchy of
constitutional values, particularly their effect on the structure and operations of government and the rights of
third parties.

The working of government is based on a well-laid and purposeful constitutional plan, essentially based on the
doctrine of separation of powers, that can only be altered by the ultimate sovereign the people. Short of this
sovereign action, not one of the departments of government neither the Executive, nor the Legislature, and nor
the Judiciary can modify this constitutional plan, whether directly or indirectly.

Concern for the individual is another overriding constitutional value. Significantly, the Constitution does not
distinguish between the guilty and the innocent in its coverage and grant of rights and guarantees. In fact, it has
very specific guarantees for all accused based on its general concern for every Filipinos life, liberty, security
and property. The Constituion, too, ensures that persons of the same class, whether natural or juridical, are
treated equally, and that the government does not discriminate in its actions.

All these, this Court must zealously guard. We in the Court cannot ever allow a disturbance of the equilibrium
of the constitutional structure in favour of one or the other branch, especially in favour of the Judiciary. Much
less can we pre-judge any potential accused, even in the name of truth-telling, retribution, national healing or
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social justice. The justice that the Constitution envisions is largely expressed and embodied in the Constitution
itself and this concept of justice, more than anything else, the Judiciary must serve and satisfy. In doing this, the
Judiciary must stand as a neutral and apolitical judge and cannot be an advocate other than for the primacy of
the Constitution.

These, in brief, reflect the underlying reasons for the cited grounds for the invalidity of E.O. 1.

I. THE EO AND THE "TRUTH" COMMISSION.

A. THE TERMS OF THE EO AND THE RULES;

NATURE OF THE "TRUTH COMMISSION"

The Philippine Truth Commission (Truth Commission or Commission) is a body "created" by the President of
the Philippines by way of an Executive Order (EO 1 or EO) entitled "Executive Order No. 1, Creating the
Philippine Truth Commission of 2010." The Truth Commissions express and avowed purpose is 2

"to seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officials
and employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration, and thereafter recommend the appropriate action to be taken thereon to ensure that the
full measure of justice shall be served without fear or favor."

Under these terms and by the Solicitor Generals admissions and representations, the Truth Commission has
three basic functions, namely, fact-finding,3 policy recommendation,4 and truth-telling,5 all with respect to
reported massive graft and corruption committed by officials and employees of the previous administration.

The EO defines the Truth Commission as an "independent collegial body" with a Chairman and four
members;6and provides for the staff,7 facilities8 and budgetary support9 it can rely on, all of which are sourced
from or coursed through the Office of the President. It specifically empowers the Truth Commission to "collect,
receive, review and evaluate evidence."10 It defines how the Commission will operate and how its proceedings
will be conducted.11 Notably, its hearings shall be open to the public, except only when they are held in
executive sessions for reasons of national security, public safety or when demanded by witnesses personal
security concerns.12 It is tasked to submit its findings and recommendations on graft and corruption to the
President, Congress and the Ombudsman,13 and submit special interim reports and a comprehensive final report
which shall be published.14 Witnesses or resource persons are given the right to counsel, 15 as well as security
protection to be provided by government police agencies. 16

The Rules of Procedure of the Philippine Truth Commission of 2010 (Rules), promulgated pursuant to Section
2(j) of EO 1, further flesh out the operations of the Commission. 17 Section 4 assures that "due process shall at
all times be observed in the application of the Rules." It provides for formal complaints that may be filed before
it,18and that after evaluation, the parties who appear responsible under the complaints shall be provided copies
of the complaints and supporting documents, and be required to comment on or file counter-affidavits within
ten (10) days.19 The Rules declare that the Commission is not bound by the technical rules of
evidence,20 reiterate the protection afforded to witnesses provided under the EO, 21 and confirm that hearings
shall be open to the public.22

B. THE TITLE "TRUTH COMMISSION"

AND DUE PROCESS

Both the parties memoranda dwelt on the origins and nature of the term "Truth Commission," with both using
their reading of the terms history and usages to support their respective positions. 23 What comes across in
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available literature is that no nation has a lock on the meaning of the term; there is only a long line of practice
that attaches the term to a body established upon restoration of democracy after a period of massive violence
and repression.24 The term truth commission has been specifically used as a title for the body investigating the
human rights violations25 that attended past violence and repression,26 and in some instances for a body working
for reconciliation in society.27

The traditional circumstances that give rise to the use of a truth commission along the lines of established
international practice are not present in the Philippine setting. The Philippines has a new democratically-elected
President, whose election has been fully accepted without protest by all presidential candidates and by the
people. A peaceful transition of administration took place, where Congress harmoniously convened, with the
past President now sitting as a member of the House of Representatives. While charges of human rights
violations may have been lodged against the government during the past administration, these charges are not
those addressed by EO 1.28 Rather, EO 1 focuses entirely on graft and corruption. Significantly, reconciliation
does not appear to be a goal either in the EO, in the pleadings filed by the parties, or in the oral arguments
thus, removing a justification for any massive information campaign aimed at healing divisions that may exist
in the nation.

As a matter of law, that a body called a Truth Commission is tasked to investigate past instances of graft and
corruption would not per se be an irregularity that should cause its invalidation. The use of the word "truth" is
not ordinarily a ground for objection. Not even the Constitution itself defines or tells us what truth is; the
Charter, fleshed out by the statutes, can only outline the process of arriving at the truth. After the Constitution
and the statutes, however, have laid down the prescribed procedure, then that procedure must be observed in
securing the truth. Any deviation could be a violation depending on the attendant circumstances.

No international law can also prevent a sovereign country from using the term as the title of a body tasked to
investigate graft and corruption affecting its citizens within its borders. At the same time, international law
cannot be invoked as a source of legitimacy for the use of the title when it is not based on the internationally-
recognized conditions of its use.

No local law likewise specifically prohibits or regulates the use of the term "truth commission." Apart from the
procedural "deviation" above adverted to, what may render the use of the term legally objectionable is the
standard of reason, applicable to all government actions, as applied to the attendant circumstances surrounding
the use in the EO of the title Truth Commission. 29 The use of this standard is unavoidable since the title Truth
Commission is used in a public instrument that defines the Commissions functions and affects both the
government and private parties.30 The Commissions work affects third parties as it is specifically tasked to
investigate and prosecute officials and employees of the previous administration. This line of work effectively
relates it to the processes of the criminal justice system.

In the simplest due process terms, the EO as a governmental action must have a reasonable objective and
must use equally reasonable means to achieve this objective. 31 When the EO viewed from the prism of its title
and its truth-telling function is considered a means of achieving the objective of fighting graft and corruption,
it would be invalid if it unreasonably or oppressively affects parties, whether they be government or private.

C. THE COMMISSIONS FUNCTIONS

As worded, the EO establishes the Commission as an investigative body tasked to act on cases of graft and
corruption committed during the previous administration. This is an area that the law has assigned to the
primary jurisdiction of the Ombudsman to investigate and prosecute. 32 If probable cause exists, these same
cases fall under the exclusive jurisdiction of the Sandiganbayan 33 whose decisions are appealable to the
Supreme Court.34

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Whether a Commission can engage in fact-finding, whose input can aid the President in policy formulation, is
not a disputed issue. What is actively disputed is whether the Truth Commission shall undertake its tasks in a
purely investigative fact-finding capacity or in the exercise of quasi-judicial powers. This issue impacts on the
level of fairness that should be observed (and the standard of reason that should apply), and thus carries due
process implications. Equally important to the issue of due process are the function of truth-telling and the
effects of this function when considered with the title "Truth Commission."

C.1. The Truth-Telling Function

The Solicitor General fully verbalized the truth-telling function when he declared that it is a means of letting the
people know the truth in the allegations of graft and corruption against the past administration. 35 The Solicitor
General, in response to the questions of J. Sereno, said:

Justice Sereno: . . .I go now to the truth-telling part of the commission. In other words, can you describe to us
the truth telling and truth seeking part of the commission?

Solicitor General Cadiz: Your Honor, of course our people will find closure if aside from the truth finding of
facts, those who have been found by the body to have committed graft and corruption will be
prosecuted by the Ombudsman. It is. . .Your Honor, there is a crime committed and therefore punishment must
be meted out. However, Your Honor, truth-telling part, the mere narration of facts, the telling of the truth,
will likewise I think to a certain degree, satisfy our people.

Justice Sereno: Are you saying therefore the truth-telling, that the narration like the other narrations in the past
commissions has an independent value apart from the recommendations to indict which particular persons?

Solicitor General Cadiz: I agree Your Honor. And it is certainly, as the EO says, its a Truth Commission the
narration of facts by the members of the Commission, I think, will be appreciated by the people
independent of the indictment that is expected likewise. [Emphasis supplied.]

His statement is justified by the EOs mandate to seek and find the truth under Section 1; the opening to the
public of the hearing and proceedings under Section 6; and the publication of the Commissions final report
under Section 15 of the EO.36

C.2. Legal Implications of Truth-Telling

Truth-telling, as its name connotes, does not exist solely for the sake of "truth"; the "telling" side is equally
important as the Solicitor General impressed upon this Court during the oral arguments.37 Thus, to achieve its
objectives, truth-telling needs an audience to whom the truth shall be told. 38 This requirement opens up the
reality that EO 1 really speaks in two forums.

The first forum, as expressly provided in the EO, is composed of the persons to be investigated and the
recipients of the Commissions reports who are expected to act on these reports, specifically, the President (who
needs investigative and policy formulation assistance); Congress (who may use the Commissions information
for its own legislative purposes); and the Ombudsman as the investigative and prosecutory constitutional
office39 to which, under the EO, the Commission must forward its interim and final reports. The Commissions
hearings and proceedings are important venues for this forum, as this is where the investigated persons can
defend themselves against the accusations made. The element of policy formulation, on the other hand, is
present through the Commissions interim and final reports from which appropriate remedial policy measures
can be distilled. The element of truth-telling in the sense of communicating to the public the developments as
they happen and through the interim and final reports exists but only plays a secondary role, as the public is
not a direct participant in this forum.
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The second forum not as explicitly defined as the first but which must implicitly and necessarily be there is
that shared with the general public as the audience to whom the President (through the EO and the Truth
Commission) wishes to tell the story of the allegedly massive graft and corruption during the previous
administration. This is the distinct domain of truth-telling as the Solicitor General himself impliedly admits in
his quoted arguments.40 Section 6 of the EO fully supports truth-telling, as it opens up the Commissions
hearings or proceedings to the public (and hence, to the mass media), subject only to an executive session
"where matters of national security or public safety are involved or when the personal safety of the witness
warrants the holding of such executive or closed-door session hearing."

These separate forums are not distinguished merely for purposes of academic study; they are there, plainly from
the terms of the EO, and carry clear distinctions from which separate legal consequences arise.

Both forums involve third parties, either as persons to be investigated or as part of the general public (in whose
behalf criminal complaints are nominally brought and who are the recipients of the Commissions truth-telling
communications) so that, at the very least, standards of fairness must be observed.41 In the investigative
function, the standard depends on whether the tasks performed are purely investigative or are quasi-judicial, but
this distinction is not very relevant to the discussions of this opinion. In truth-telling, on the other hand, the level
of the required fairness would depend on the objective of this function and the level of finality attained with
respect to this objective.42

In the first forum, no element of finality characterizes the Commissions reports since from the perspective of
the EOs express purposes of prosecution and policy formulation they are merely recommendatory and are
submitted for the Presidents, Congress and the Ombudsmans consideration. Both the President and Congress
may reject the reports for purposes of their respective policy formulation activities; the Ombudsman may
likewise theoretically and nominally reject them (although with possibly disastrous results as discussed below).

In the second forum, a very high element of finality exists as the information communicated through the
hearings, proceedings and the reports are directly "told" the people as the "truth" of the graft and corruption that
transpired during the previous administration. In other words, the Commissions outputs are already the end
products, with the people as the direct consumers. In this sense, the element of fairness that must exist in the
second forum must approximate the rights of an accused in a criminal trial as the consequence of truth-telling is
no less than a final "conviction" before the bar of public opinion based on the "truth" the Commission "finds."
Thus, if the Commission is to observe the rights of due process as Rule 1, Section 4 of its Rules guarantees, then
the right of investigated persons to cross-examine witnesses against them, 43 the right against self-
incrimination,44 and all the rights attendant to a fair trial must be observed. The rights of persons under
investigation under Section 12 of the Bill of Rights of the Constitution 45 must likewise be respected.

II. THE EOS LEGAL INFIRMITIES.

A. THE TITLE "TRUTH COMMISSION" + THE TRUTH-TELLING FUNCTION = VIOLATION OF DUE

PROCESS

A.1. The Impact of the Commissions "Truth"

The first problem of the EO is its use of the title "Truth Commission" and its objective of truth-telling; these
assume that what the Truth Commission speaks of is the "truth" because of its title and of its truth-telling
function; thus, anything other than what the Commission reports would either be a distortion of the truth, or
may even be an "untruth."

This problem surfaced during the oral arguments on queries about the effect of the title "Truth Commission" on
the authority of the duly constituted tribunals that may thereafter rule on the matters that the Commission shall
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report on.46 Since the Commissions report will constitute the "truth," any subsequent contrary finding by the
Ombudsman47 would necessarily be suspect as an "untruth;" it is up then to the Ombudsman to convince the
public that its findings are true.

To appreciate the extent of this problem, it must be considered that the hearings or proceedings, where charges
of graft and corruption shall be aired, shall be open to the public. The Commissions report shall likewise be
published.48 These features cannot but mean full media coverage.

Based on common and usual Philippine experience with its very active media exemplified by the recent taking
of Chinese and Canadian hostages at the Luneta, a full opening to the media of the Commissions hearings,
proceedings and reports means a veritable media feast that, in the case of the Truth Commission, shall occur on
small but detailed daily doses, from the naming of all the persons under investigation all the way up to the
Commissions final report. By the time the Commission report is issued, or even before then, the public shall
have been saturated with the details of the charges made through the publicly-aired written and testimonial
submissions of witnesses, variously viewed from the vantage points of straight reporting, three-minute TV news
clips, or the slants and personal views of media opinion writers and extended TV coverage. All these are
highlighted as the power of the media and the environment that it creates can never be underestimated. Hearing
the same "truth" on radio and television and seeing it in print often enough can affect the way of thinking and
the perception, even of those who are determined, in their conscious minds, to avoid bias. 49

As expected, this is a view that those supporting the validity of the EO either dismisses as an argument that
merely relies on a replaceable name, 50 or with more general argument couched under the question "Who Fears
the Truth."51

The dismissive argument, to be sure, would have been meritorious if only the name Truth Commission had not
been supported by the Commissions truth-telling function; or, if the name "Truth Commission" were a
uniquely Filipino appellation that does not carry an established meaning under international practice and usage.
Even if it were to be claimed that the EOs use of the name is unique because the Philippines version of the
Truth Commission addresses past graft and corruption and not violence and human rights violations as in other
countries, the name Truth Commission, however, cannot simply be dissociated from its international usage. The
term connotes abuses of untold proportions in the past by a repressive undemocratic regime a connotation that
may be applicable to the allegations of graft and corruption, but is incongruous when it did not arise from a
seriously troubled regime; even the present administration cannot dispute that it assumed office in a peaceful
transition of power after relatively clean and peaceful elections.

The "Who Fears the Truth?" arguments, on the other hand, completely miss the point of this Separate
Opinion. This Opinion does not dispute that past graft and corruption must investigated and fully exposed; any
statement to the contrary in the Dissent are unfounded rhetoric written solely for its own partisan audience.
What this Opinion clearly posits as legally objectionable is the governments manner of "telling;" any such
action by government must be made according to the norms and limits of the Constitution to which all
departments of government including the Executive are subject. Specifically, the Executive cannot be left
unchecked when its methods grossly violate the Constitution. This matter is discussed in full below.

A.2. Truth-telling and the Ombudsman

To return to the scenario described above, it is this scenario that will confront the Ombudsman when the
Commissions report is submitted to it. At that point, there would have been a full and extended public debate
heavily influenced by the Commissions "truthful" conclusions. Thus, when and if the Ombudsman finds the
evidence from the report unconvincing or below the level that probable cause requires, it stands to incur the
public ire, as the public shall have by then been fully informed of the "facts" and the "truth" in the
Commissions report that the Ombudsman shall appear to have disregarded.
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This consequence does not seem to be a serious concern for the framers and defenders of the EO, as the
Commissions truth-telling function by then would have been exercised and fully served. In the Solicitor
Generals words "Your Honor, there is crime committed and therefore punishment must be meted out. However,
your Honor, truth-telling part, the mere narration of facts, the telling of the truth, will likewise I think to a
certain degree satisfy our people." On the question of whether truth-telling has an independent value separate
from the indictment - he said: "And it is certainly, as the EO says, its a Truth Commission the narration of facts
by the members of the Commission, I think, will be appreciated by the people independent of the indictment
that is expected likewise."52

In other words, faced with the findings of the Commission, the Ombudsman who enters a contrary ruling
effectively carries the burden of proving that its findings, not those of the Commission, are correct. To say the
least, this resulting reversal of roles is legally strange since the Ombudsman is the body officially established
and designated by the Constitution to investigate graft and other crimes committed by public officers, while the
Commission is a mere "creation" of the Executive Order. The Ombudsman, too, by statutory mandate has
primary jurisdiction over the investigation and prosecution of graft and corruption, while the Commissions role
is merely recommendatory.

Thus, what the EO patently expresses as a primary role for the Commission is negated in actual application by
the title Truth Commission and its truth-telling function. Expressed in terms of the forums the EO spawned, the
EOs principal intent to use the Truth Commission as a second forum instrument is unmasked; the first forum
the officially sanctioned forum for the prosecution of crimes becomes merely a convenient cover for the
second forum.

A.3. Truth-telling and the Courts

The effects of truth-telling could go beyond those that affect the Ombudsman. If the Ombudsman concurs with
the Commission and brings the recommended graft and corruption charges before the Sandiganbayan a
constitutionally-established court this court itself would be subject to the same truth-telling challenge if it
decides to acquit the accused. For that matter, even this Court, will be perceived to have sided with an "untruth"
when and if it goes against the Commissions report. Thus, the authority, independence, and even the integrity
of these constitutional bodies the Ombudsman, the Sandiganbayan, and the Supreme Court would have been
effectively compromised, to the prejudice of the justice system. All these, of course, begin with the premise that
the Truth Commission has the mandate to find the "truth," as it name implies, and has a truth-telling function
that it can fully exercise through its own efforts and through the media.

A.4. Truth-telling and the Public.

A.4.1. Priming and Other Prejudicial Effects.

At this point in the political development of the nation, the public is already a very critical audience who can
examine announced results and can form its own conclusions about the culpability or innocence of the
investigated persons, irrespective of what conclusions investigative commissions may arrive at. This is a reality
that cannot be doubted as the public has been exposed in the past to these investigative commissions.

The present Truth Commission operating under the terms of the EO, however, introduces a new twist that the
public and the country have not met before. For the first time, a Truth Commission, tasked with a truth-telling
function, shall speak on the "truth" of what acts of graft and corruption were actually committed and who the
guilty parties are. This official communication from a governmental body the Truth Commission whose
express mandate is to find and "tell the truth" cannot but make a difference in the public perception.

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At the very least, the widely-publicized conclusions of the Truth Commission shall serve as a mechanism for
"priming" 53 the public, even the Ombudsman and the courts, to the Commissions way of thinking. Pervasively
repeated as an official government pronouncement, the Commissions influence can go beyond the level of
priming and can affect the public environment as well as the thinking of both the decision makers in the
criminal justice system and the public in general.

Otherwise stated, the Commissions publicly announced conclusions cannot but assume the appearance of truth
once they penetrate and effectively color the publics perception, through repetition without significant
contradiction as official government findings. These conclusions thus graduate to the level of "truth" in self-
fulfillment of the name the Commission bears; the subtle manipulation of the Commissions name and
functions, fades in the background or simply becomes explainable incidents that cannot defeat the accepted
truth.

A very interesting related material about the effect of core beliefs on the decision-making of judges is the point
raised by United States Supreme Court Associate Justice Benjamin N. Cardozo 54 in his book The Nature of the
Judicial Process55 where he said:

Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace, not even the
faintest, among the judges whom I have known. But every day there is borne in on me a new conviction of the
inescapable relation between the truth without us and the truth within. The spirit of the age, as it is revealed to
each of us, is too often only the spirit of the group in which the accidents of birth or education or occupation or
fellowship have given us place. No effort or revolution of the mind will overthrow utterly and at all times the
empire of the subconscious loyalties. "Our beliefs and opinions," says James Harvey Robinson, "like our
standards of conduct come to us insensibly as products of our companionship with our fellow men, not as
results of our personal experience and the inferences we individually make from our own observations. We are
constantly misled by our extraordinary faculty of rationalizing that is, of devising plausible arguments by
accepting what is imposed upon us by the traditions of the group to which we belong. We are abjectly credulous
by nature, and instinctively accept the verdict of the group. We are suggestible not merely when under the spell
of an excited mob, or a fervent revival, but we are ever and always listening to the still small voice of the herd,
and are ever ready to defend and justify the instructions and warnings, and accept them as the mature results of
our own reasoning." This was written, not of judges specially, but of men and women of all
classes.56 [Emphasis supplied]

Thus, Justice Cardozo accepted that "subconscious loyalties" to the "spirit" of the group, i.e., the core beliefs
within, is a major factor that affects the decision of a judge. In the context of EO 1, that "spirit" or core belief is
what a generally trusted governments57 repeated invocation of "truth" apparently aims to reach. This goal
assumes significance given the Solicitor Generals statement that truth-telling is an end in itself. Read with what
Justice Cardozo said, this goal translates to the more concrete and currently understandable aim to establish
the "truth" as part of the accepted public belief; the EOs aim is achieved irrespective of what the pertinent
adjudicatory bodies may conclude, as even they could be influenced by the generally accepted "truth."

Further on, Justice Cardozo, speaking in the context of the development of case law in common law, went on to
say, quoting Henderson:58

When an adherent to a systematic faith is brought continuously in touch with influences and exposed to desires
inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing store of
hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom emerging
clearly into consciousness. In the meantime, the formulas of the old faith are retained and repeated by force of
habit, until one day the realization comes that conduct and sympathies and fundamental desires have become so
inconsistent with the logical framework that it must be discarded. Then begins the task of building up and
rationalizing a new faith.
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Although written in another context, this statement relating to how ones belief is supplanted by another
runs parallel to how the belief system of an individual judge can be subtly affected by inconsistent influences
and how he ultimately succumbs to a new belief.

Without doubt, the process of converting to a new belief is an unavoidable and continuous process that every
decision maker undergoes as the belief system he started with, changes and evolves through in-court
experiences and exposure to outside influences. Such exposure cannot be faulted, particularly when brought on
by the media working pursuant to its exercise of the freedoms of the press and speech, and speaking in the
course of the clash of ideas in the public forum. The same exposure, however, is not as neutral and fault-free
when it is precipitated by the government acting as a catalytic agent to hasten the achievement of its own ends,
in this case, the disclosure of the "truth" regarding the alleged graft and corruption during the previous regime.

In the context of the EO, the Executive can investigate within the limits of its legal parameters and can likewise
publicize the results of its investigations to the full limit of allowable transparency. But in so doing, it cannot act
as catalyst by labelling the action of the Commission it has created as officially-sanctioned and authoritative
truth-telling before the officially-designated bodies the Ombudsman and the courts have spoken. While the
emergence of truth is a basic and necessary component of the justice system, the truth-seeking and truth-finding
processes cannot be speeded up through steps that shortcut and bypass processes established by the Constitution
and the laws. As heretofore mentioned, the international experiences that gave rise to the title Truth
Commission were transitional situations where, for peculiar reasons (such as the temporary absence of an
established judicial system or the need to speed up the transition to democratic rule), the use of ad hoc
commissions were called for. In the Philippine setting, the closest similar situation would be the immediate
aftermath of the 1986 EDSA Revolution as the country struggled in the transition from authoritarian martial law
regime into a full-fledged democracy. To be sure, the shortcut to the emergence of truth, fashioned under the
terms of EO 1, finds no justification after the 1987 Constitution and its rights, freedoms and guarantees have
been fully put in place.

A.4.2. The Effects on the Judicial System

To fully appreciate the potential prejudicial effects of truth-telling on the judicial system, the effects of media
exposure from the point of view of what transpires and the circumstances present under truth-telling and
under the present justice system deserve examination.

Under the present justice system, the media may fully report, as they do report, all the details of a reported
crime and may even give the suspects detailed focus. These reports, however, are not branded as the "truth" but
as matters that will soon be brought to the appropriate public authorities for proper investigation and
prosecution, if warranted. In the courts, cases are handled on the basis of the rules of evidence and with due
respect for the constitutional rights of the accused, and are reported based on actual developments, subject only
to judicial requirements to ensure orderly proceedings and the observance of the rights of the accused. Only
after the courts have finally spoken shall there be any conclusive narrative report of what actually transpired and
how accused individuals may have participated in committing the offense charged. At this point, any public
report and analysis of the findings can no longer adversely affect the constitutional rights of the accused as they
had been given all the opportunities to tell their side in court under the protective guarantees of the Constitution.

In contrast, the circumstances that underlie Commission reports are different. The "truth" that the Commission
shall publicize shall be based on "facts" that have not been tested and admitted according to the rules of
evidence; by its own express rules, the technical rules of evidence do not apply to the Commission. 59 The
reported facts may have also been secured under circumstances violative of the rights of the persons
investigated under the guarantees of the Constitution. Thus, what the Commission reports might not at all pass
the tests of guilt that apply under the present justice system, yet they will be reported with the full support of the
government as the "truth" to the public. As fully discussed below, these circumstances all work to the active
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prejudice of the investigated persons whose reputations, at the very least, are blackened once they are reported
by the Commission as participants in graft and corruption, even if the courts subsequently find them innocent of
these charges.

A.5. Truth-telling: an unreasonable means to a reasonable objective.

Viewed from the above perspectives, what becomes plainly evident is an EO that, as a means of fighting graft
and corruption, will effectively and prejudicially affect the parties inter-acting with the Truth Commission. The
EO will erode the authority and even the integrity of the Ombudsman and the courts in acting on matters
brought before them under the terms of the Constitution; its premature and "truthful" report of guilt will
condition the publics mind to reject any finding other than those of the Commission.

Under this environment, the findings or results of the second forum described above overwhelm the processes
and whatever may be the findings or results of the first forum. In other words, the findings or results of the
second forum obtained without any assurance of the observance of constitutional guarantees would not only
create heightened expectations and exert unwanted pressure, but even induce changed perceptions and bias in
the processes of the first forum in the manner analogous to what Justice Cardozo described above. The first
casualties, of course, are the investigated persons and their basic rights, as fully explained elsewhere in this
Opinion.

While EO 1 may, therefore, serve a laudable anti-graft and corruption purpose and may have been launched by
the President in good faith and with all sincerity, its truth-telling function, undertaken in the manner outlined in
the EO and its implementing rules, is not a means that this Court can hold as reasonable and valid, when viewed
from the prism of due process. From this vantage point, the Commission is not only a mislabelled body but one
whose potential outputs must as well be discarded for being unacceptable under the norms of the Constitution.

B. DISTORTION OF EXISTING LEGAL FRAMEWORK

The EO and its truth-telling function must also be struck down as they distort the constitutional and statutory
plan of the criminal justice system without the authority of law and with an unconstitutional impact on the
system.

B.1. The Existing Legal Framework

The Constitution has given the country a well-laid out and balanced division of powers, distributed among the
legislative, executive and judicial branches, with specially established offices geared to accomplish specific
objectives to strengthen the whole constitutional structure.

The Legislature is provided, in relation with the dispensation of justice, the authority to create courts with
defined jurisdictions below the level of the Supreme Court; 60 to define the required qualifications for
judges;61 to define what acts are criminal and what penalties they shall carry; 62 and to provide the budgets for
the courts.63

The Executive branch is tasked with the enforcement of the laws that the Legislature shall pass. In the
dispensation of justice, the Executive has the prerogative of appointing justices and judges, 64 and the authority
to investigate and prosecute crimes through a Department of Justice constituted in accordance the
Administrative Code.65 Specifically provided and established by the Constitution, for a task that would
otherwise fall under the Executives investigatory and prosecutory authority, is an independent Ombudsman for
the purpose of acting on, investigating and prosecuting allegedly criminal acts or omissions of public officers
and employees in the exercise of their functions. While the Ombudsmans jurisdiction is not exclusive, it is

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primary; it takes precedence and overrides any investigatory and prosecutory action by the Department of
Justice.66

The Judiciary, on the other hand, is given the task of standing in judgment over the criminal cases brought
before it, either at the first instance through the municipal and the regional trial courts, or on appeal or certiorari,
through the appellate courts and ultimately to the Supreme Court. 67 An exception to these generalities is the
Sandiganbayan, a special statutorily-created court with the exclusive jurisdiction over criminal acts committed
by public officers and employees in the exercise of their functions. 68 Underlying all these is the Supreme
Courts authority to promulgate the rules of procedure applicable to courts and their proceedings, 69 to appoint
all officials and employees of the Judiciary other than judges, 70 and to exercise supervision over all courts and
judiciary employees.71

In the usual course, an act allegedly violative of our criminal laws may be brought to the attention of the police
authorities for unilateral fact-finding investigation. If a basis for a complaint exists, then the matter is brought
before the prosecutors office for formal investigation, through an inquest or a preliminary investigation, to
determine if probable cause exists to justify the filing of a formal complaint or information before the courts.
Aside from those initiated at the instance of the aggrieved private parties, the fact-finding investigation may be
made at the instance of the President or of senior officials of the Executive branch, to be undertaken by police
authorities, by the investigatory agencies of the Department of Justice, or by specially constituted or delegated
officials or employees of the Executive branch; the preliminary investigation for the determination of probable
cause is a task statutorily vested in the prosecutors office. 72 Up to this point, these activities lie within the
Executive branch of government and may be called its extrajudicial participation in the justice system.

By specific authority of the Constitution and the law, a deviation from the above general process occurs in the
case of acts allegedly committed by public officers and employees in the performance of their duties where, as
mentioned above, the Ombudsman has primary jurisdiction. While the Executive branch itself may undertake a
unilateral fact-finding, and the prosecutors office may conduct preliminary investigation for purposes of filing
a complaint or information with the courts, the Ombudsmans primary jurisdiction gives this office precedence
and dominance once it decides to take over a case.73

Whether a complaint or information emanates from the prosecutors office or from the Ombudsman,
jurisdiction to hear and try the case belongs to the courts, mandated to determine under the formal rules of
evidence of the Rules of Court and with due observance of the constitutional rights of the accused the guilt or
innocence of the accused. A case involving criminal acts or omissions of public officers and employees in the
performance of duties falls at the first instance within the exclusive jurisdiction of the Sandiganbayan,74 subject
to higher recourse to the Supreme Court. This is the strictly judicial aspect of the criminal justice system.

Under the above processes, our laws have delegated the handling of criminal cases to the justice system and
there the handling should solely lie, supported by all the forces the law can muster, until the disputed matter is
fully resolved. The proceedings whether before the Prosecutors Office, the Ombudsman, or before the courts
are open to the public and are thereby made transparent; freedom of information 75 and of the press76 guarantee
media participation, consistent with the justice systems orderly proceedings and the protection of the rights of
parties.

The extrajudicial intervention of the Commission, as provided in the EO, even for the avowed purpose of
"assisting" the Ombudsman, directly disrupts the established order, as the Constitution and the law do not
envision a situation where fact-finding recommendations, already labelled as "true," would be submitted to
the Ombudsman by an entity within the Executive branch. This arrangement is simply not within the
dispensation of justice scheme, as the determination of whether probable cause exists cannot be defeated,
rendered suspect, or otherwise eroded by any prior process whose results are represented to be the "truth" of the
alleged criminal acts. The Ombudsman may be bound by the findings of a court, particularly those of this Court,
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but not of any other body, most especially a body outside the regular criminal justice system. Neither can the
strictly judicial aspect of the justice system be saddled with this type of fact-finding, as the determination of the
guilt or innocence of an accused lies strictly and solely with the courts. Nor can the EO cloak its intent of
undercutting the authority of the designated authorities to rule on the merits of the alleged graft and corruption
through a statement that its findings are recommendatory; as has been discussed above, this express provision is
negated in actual application by the title Truth Commission and its truth-telling function.

A necessary consequence of the deviation from the established constitutional and statutory plan is the extension
of the situs of the justice system from its constitutionally and statutorily designated locations (equivalent to the
above-described first forum), since the Commission will investigate matters that are bound to go to the justice
system. In other words, the Commissions activities, including its truth-telling function and the second forum
this function creates, become the prelude to the entry of criminal matters into the Ombudsman and into the
strictly judicial aspect of the system.

In practical terms, this extension undermines the established order in the judicial system by directly bringing in
considerations that are extraneous to the adjudication of criminal cases, and by co-mingling and confusing these
with the standards of the criminal justice system. The result, unavoidably, is a qualitative change in the criminal
justice system that is based, not on a legislative policy change, but on an executive fiat.

Because of truth-telling and its consequence of actively bringing in public opinion as a consideration, standards
and usages other than those strictly laid down or allowed by the Constitution, by the laws and by the Rules of
Court will play a part in the criminal justice system. For example, public comments on the merits of cases that
are still sub judice may become rampant as comments on a truth commissions findings, not on the cases
pending before the courts. The commissions "truthful" findings, made without respect for the rules on evidence
and the rights of the accused, would become the standards of public perception of and reaction to cases, not the
evidence as found by the courts based on the rules of evidence.

Once the door is opened to the Truth Commission approach and public opinion enters as a consideration in the
judicial handling of criminal cases, then the rules of judging would have effectively changed; reliance on the
law, the rules and jurisprudence would have been weakened to the extent that judges are on the lookout, not
only for what the law and the rules say, but also for what the public feels about the case. In this eventuality,
even a noisy minority can change the course of a case simply because of their noise and the media attention they
get. (Such tactics have been attempted in the immediate past where pressure has been brought to bear on this
Court through street demonstrations bordering on anarchy, the marshalling of opinions locally and
internationally, and highly partisan media comments.) The primacy of public opinion may, without doubt,
appeal to some but this is simply not the way of a Judiciary constitutionally-designed to follow the rule of law.

Another consequent adverse impact could be erosion of what the Constitution has very carefully fashioned to be
a system where the interpretation of the law and the dispensation of justice are to be administered apolitically by
the Judiciary. Politics always enters the picture once public opinion begins to be a significant consideration. At
this point, even politicians ever attuned to the public pulse may register their own statements in the public
arena on the merits of the cases even while matters are sub judice. The effects could be worse where the case
under consideration carries its own political dimensions, as in the present case where the target involves the
misdeeds of the previous administration.

Whether the Judiciary shall involve, or be involved, in politics, or whether it should consider, or be affected by,
political considerations in adjudication, has been firmly decided by the Constitution and our laws in favour of
insulation through provisions on the independence of the Judiciary the unelected branch of government whose
standard of action is the rule of law rather than the public pulse. This policy has not been proven to be unsound.
Even if it is unsound, any change will have to be effected through legitimate channels through the sovereignty
that can change the Constitution, to the extent that the Judiciarys and the Ombudsmans independence and the
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exercise of judicial discretion are concerned, and through the Congress of the Philippines, with respect to other
innovations that do not require constitutional changes.

To be sure, the President of the Philippines, through an executive or administrative order and without authority
of law, cannot introduce changes or innovations into the justice system and significantly water down the
authoritative power of the courts and of duly designated constitutional bodies in dispensing justice. The nobility
of the Presidents intentions is not enough to render his act legal. As has been said often enough, ours is a
government of laws, not of men.

C. LIMITS OF THE EXERCISE OF EXECUTIVE POWER IN THE JUSTICE SYSTEM

While the Executive participates in the dispensation of justice under our constitutional and statutory system
through its investigatory and prosecutory arms and has every authority in law to ensure that the law is enforced
and that violators are prosecuted, even these powers have limits.

The independence of the Ombudsman and its freedom from interference from all other departments of
government in the performance of its functions is a barrier that cannot be breached, directly or indirectly, except
only as the Constitution and the laws may allow. No such exception has been allowed or given to the President
other than through the prosecution the Department of Justice may undertake77 when the Ombudsman has not
asserted its primary jurisdiction. The concurrent jurisdiction given to the Department of Justice to prosecute
criminal cases, incidentally, is a grant specific to that office, 78 not to any other office that the Executive may
create through an executive order.

The Executive can, without doubt, recommend that specific violators be prosecuted and the basis for this
recommendation need not even come from the Department of Justice; the basis may be the findings of the
Office of the President itself independently of its Department of Justice. Notably, the other branches of
government may also, and do in fact, make recommendations to the Ombudsman in the way that Congress, in
the course of its fact-finding for legislative purposes, unearths anomalies that it reports to the Ombudsman.
Even the Supreme Court recommends that Judiciary officials and employees found administratively liable be
also criminally prosecuted.

The Executive can also designate officials and employees of the Executive Department (or even appoint
presidential assistants or consultants)79 to undertake fact-finding investigation for its use pursuant to the vast
powers and responsibilities of the Presidency, but it cannot create a separate body, in the way and under the
terms it created the Truth Commission, without offending the Constitution.

The following indicators, however, show that the President was not simply appointing presidential assistants or
assistants when he constituted the Truth Commission as an investigating or fact-finding body.

First, the President "created" the Truth Commission; the act of creation goes beyond the mere naming,
designation or appointment of assistants and consultants. There is no need to "create" i.e., to constitute or
establish something out of nothing, or to establish for the first time 80 if only the designation or appointment of
a presidential assistant or consultant is intended. To "create" an office, too, as the petitioners rightfully claim, is
a function of the Legislature under the constitutional division of powers. 81 Note in this regard, and as more fully
discussed below, that what the Revised Administrative Code, through its Section 31, allows the President is to
"reorganize," not to create a public office within the Executive department.

Second, the Truth Commission, as created by the EO, appears to be a separate body82 that is clearly beyond
being merely a group of people tasked by the President to accomplish a specific task within his immediate
office; its members do not operate in the way that presidential assistants and consultants usually do.

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It is not insignificant that the Commission has its own Rules of Procedure that it issued on its own on the
authority of the EO. Note that these are not the rules of the Office of the President but of another body, although
one constituted by the President.

The Commission has its own complete set of officers, beginning from the Chair and members of the
Commission; it has its own consultants, experts, and employees, although the latter are merely drawn from the
Executive department;83 and it even has provisions for its own budget, although these funds ride on and are to
be drawn from the budget of the Office of the President.

Third, the Commission has its own identity, separate and distinct from the Office of the President, although it
still falls within the structural framework of that office. The Commission undertakes its own "independent"
investigation84 that, according to the Solicitor General, will not be controlled by the Office of the
President;85 and it communicates on its own, under its own name, to other branches of government outside of
the Executive branch.

Lastly, the Commission as an office has been vested with functions that not even the Office of the President
possesses by authority of law, and which the President, consequently, cannot delegate. Specifically, the
Commission has its truth-telling function, because it has been given the task to disclose the "truth" by the
President, thus giving its report the imprimatur of truth well ahead of any determination in this regard by the
constitutional bodies authorized to determine the existence of probable cause and the guilt or culpability of
individuals.

If the President cannot give the official label of truth independently of the courts in a fact-finding in a criminal
case, either by himself or through the Department of Justice, it only follows that he cannot delegate this task to
any assistant, consultant, or subordinate, even granting that he can order a fact-finding investigation based on
the powers of his office. This truth-telling function differentiates the Truth Commission from other
commissions constituted in the past such as the Agrava, Feliciano and Melo Commissions; the pronouncements
of the latter bodies did not carry the imprimatur of truth, and were mere preliminary findings for the Presidents
consideration. An exact recent case to drive home this point is the Chinese hostage incident where the Office of
the President modified the Report submitted by a duly-constituted group headed by Secretary Leila de
Lima.86 Apparently, the findings of the De Lima committee did not carry the imprimatur of truth and were
merely recommendatory; otherwise the Office of the President would not have modified its findings and
recommendations.

Still on the point of the Presidents authority to delegate tasks to a body he has constituted, in no case can the
President order a fact-finding whose results will operate to undercut the authority and integrity of the
Ombudsman in a reported violation of the criminal laws by a public servant. The Presidents authority outside
of the instance when the Department of Justice acts in default of the Ombudsman is to bring to the attention
of, or make recommendations to, the Ombudsman violations of the law that the Executive branch uncovers in
the course of law enforcement. This authority should be no different from that which Congress and the Supreme
Court exercise on the same point.

Given all the possibilities open to the President for a legitimate fact-finding intervention namely, through fact-
finding by the Department of Justice or by the Office of the President itself, utilizing its own officials,
employees, consultants or assistants the President is not wanting in measures within the parameters allowed
by law to fight graft and corruption and to address specific instances that come to his attention. To be sure, the
Philippine situation right now is far from the situations in South Africa, Rwanda, and South America, 87 where
quick transitional justice88 had to be achieved because these countries were coming from a period of non-
democratic rule and their desired justice systems were not yet fully in place. This reality removes any
justification for the President to resort to extralegal (or even illegal) measures and to institutions and
mechanisms outside of those already in place, in proceeding against grafters in the previous administration.
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If the President and Congress are dissatisfied with the Ombudsmans performance of duty, the constitutionally-
provided remedy is to impeach the Ombudsman based on the constitutionally-provided grounds for removal.
The remedy is not through the creation of a parallel office that either duplicates or renders ineffective the
Ombudsmans actions. By the latter action, the President already situates himself and the Executive Department
into the justice system in a manner that the Constitution and the law do not allow.

D. THE PRESIDENT HAS NO AUTHORITY EITHER UNDER THE CONSTITUTION OR UNDER THE
LAWS TO CREATE THE TRUTH COMMISSION.

Under the 1987 Constitution, the authority to create offices is lodged exclusively in Congress. This is a
necessary implication89 of its "plenary legislative power."90 Thus, except as otherwise provided by the
Constitution or statutory grant, no public office can be created except by Congress; any unauthorized action in
this regard violates the doctrine of separation of powers.

In essence, according to Father Joaquin Bernas, "separation of powers means that legislation belongs to
Congress, execution to the executive, settlement of legal controversies to the judiciary." 91 This means that the
President cannot, under the present Constitution and in the guise of "executing the laws," perform an act that
would impinge on Congress exclusive power to create laws, including the power to create a public office.

In the present case, the exclusive authority of Congress in creating a public office is not questioned. The issue
raised regarding the Presidents power to create the Truth Commission boils down to whether the Constitution
allows the creation of the Truth Commission by the President or by an act of Congress.

D.1 The Section 31 Argument.

EO 1, by its express terms, 92 is premised on "Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines, which gives the President the

continuing authority to reorganize the Office of the President. The Solicitor General, of course, did not
steadfastly hold on to this view; in the course of the oral arguments and in his Memorandum, he invoked other
bases for the Presidents authority to issue EO 1. In the process, he likewise made various claims, not all of
them consistent with one another, on the nature of the Truth Commission that EO 1 created.

Section 31 shows that it is a very potent presidential power, as it empowers him to (1) to re-organize his own
internal office; (2) transfer any function or office from the Office of the President to the various executive
departments; and (3) transfer any function or office from the various executive departments to the Office of the
President.

To reorganize presupposes that an office is or offices are already existing and that (1) a reduction is effected,
either of staff or of its functions, for transfer to another or for abolition because of redundancy; (2) offices are
merged resulting in the retention of one as the dominant office; (3) two offices are abolished resulting in the
emergence of a new office carrying the attributes of its predecessors as well as their responsibilities; or (4) a
new office is created by dividing the functions and staff of an existing office. Buklod ng Kawaning EIIB v.
Hon. Executive Secretary addresses this point when it said:

[R]eorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. It takes place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control, authority and responsibility between them. 93

These traditional concepts of reorganization do not appear to have taken place in the establishment of the Truth
Commission. As heretofore mentioned, by its plain terms, it was "created" and did not simply emerge from the
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functions or the personality of another office, whether within or outside the Office of the President. Thus, it is a
completely new body that the President constituted, not a body that appropriated the powers of, or derived its
powers from, the investigatory and prosecutory powers of the Department of Justice or any other investigatory
body within the Executive branch.

From the Solicitor Generals Memorandum, it appears that the inspiration for the EO came from the use and
experiences of truth commissions in other countries that were coming from "determinate periods of abusive rule
or conflict" for purposes of making "recommendations for [the] redress and future prevention"94 of similar
abusive rule or conflict. It is a body to establish the "truth of what abuses actually happened in the past;" the
Solicitor General even suggests that the "doctrine of separation of powers and the extent of the powers of co-
equal branches of government should not be so construed as to restrain the Executive from uncovering the truth
about betrayals of public trust, from addressing their enabling conditions, and from preventing their
recurrence."95 By these perorations, the Solicitor General unwittingly strengthens the view that no
reorganization ever took place when the Truth Commission was created; what the President "created" was a
new office that does not trace its roots to any existing office or function from the Office of the President or from
the executive departments and agencies he controls.

Thus, the President cannot legally invoke Section 31 to create the Truth Commission. The requirements for the
application of this Section are simply not present; any insistence on the use of this Section can only lead to the
invalidity of EO 1.

D.2. The PD 1416 and Residual Powers Argument

Independently of the EOs express legal basis, the Solicitor-General introduced a new basis of authority,
theorizing that "the power of the President to reorganize the executive branch" is justifiable under Presidential
Decree (PD) No. 1416, as amended by PD No. 1772, based on the Presidents residual powers under Section 20,
Title I, Book III of E.O. No. 292." He cites in this regard the case of Larin v. Executive Secretary96 and
according to him:

x x x This provision speaks of such other powers vested in the President under the law. What law then which
gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No.
1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the
national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices,
to transfer functions, to create and classify functions, services and activities and to standardize salaries and
materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that "all
laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended, repealed or revoked." So far, there is
yet no law amending or repealing said decrees.97 [Emphasis supplied]

Unfortunately, even the invocation of the transitory clause of the 1987 Constitution (regarding the validity of
laws and decrees not inconsistent with the Constitution) cannot save EO 1, as PD 1416 is a legislation that has
long lost its potency.

Contemporary history teaches us that PD 1416 was passed under completely different factual and legal milieus
that are not present today, thus rendering this presidential decree an anachronism that can no longer be invoked.

Prior to the EDSA Revolution of 1986 (and the 1987 Constitution), President Marcos exercised legislative
powers and issued PD 1416, as amended by PD 1772, which, by its express terms, allowed the President to
reorganize and/or create offices within the National Government. This was sanctioned in the exercise of the
Presidents martial law powers and on the basis of Article XVII, Section 3(2) of the 1973 Constitution.98

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Upon the adoption of the 1987 Constitution, and the re-introduction of the presidential form of government, the
"separation of legislative and executive powers"99 was restored. Similarly recognized were the limits on the
exercise of the carefully carved-out and designated powers of each branch of government. Thus, Congress
regained the exclusive power to create public offices; PD 1416, as amended by PD 1776 a creation of the
legal order under President Marcos lost its authority as a justification for the creation of an office by the
President.

That PD 1416, as amended by PD 1776, has been overtaken and rendered an obsolete law, is not a new position
taken within this Court. In his separate concurring opinion in Banda v. Executive Secretary, 100 Justice Antonio
T. Carpio pointedly posited that the ruling in Larin v. Executive Secretary101 (reiterated in Buklod ng Kawaning
EIIB v. Hon. Sec. Zamora102 and Tondo Medical Center Employees Association v. Court of Appeals 103), which
relied on Section 20, Chapter 7, Book II of the Administrative Code of 1987 in relation with P.D. 1416, cannot
validate Executive Order No. 378 assailed in that case because "P.D. 1416, as amended, with its blending of
legislative and executive powers, is a vestige of an autrocratic era, totally anachronistic to our present-day
constitutional democracy." 104

Thus, the present and firmly established legal reality is that under the 1987 Constitution and the Revised
Administrative Code, the President cannot create a public office except to the extent that he is allowed by
Section 31, Chapter 10, Book III of the Revised Administrative Code. As discussed above, even this narrow
window cannot be used as the President did not comply with the requirements of Section 31.

D.3. The Authority of the President under the Faithful Execution Clause

Article VII, Section 17 of the 1987 Constitution directs and authorizes the President to faithfully execute the
laws and the potency of this power cannot be underestimated. Owing perhaps to the latitude granted to the
President under this constitutional provision, the Solicitor General posited that the Presidents power to create
the Truth Commission may be justified under this general grant of authority. In particular, the Solicitor General
argues that the "Presidents power to conduct investigations to aid him in ensuring the faithful execution of laws
in this case, fundamental laws on public accountability and transparency is inherent in the Presidents
powers as the Chief Executive." 105 The Solicitor General further argues: "That the authority of the President to
conduct investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution
or in statutes does not mean he is bereft of such authority."106

That the President cannot, in the absence of any statutory justification, refuse to execute the laws when called
for is a principle fully recognized by jurisprudence. In In re Neagle, the US Supreme Court held that the faithful
execution clause is "not limited to the enforcement of acts of Congress according to their express
terms."107According to Father Bernas, Neagle "saw as law that had to be faithfully executed not just formal acts
of the legislature but any duty or obligation inferable from the Constitution or from statutes." 108

Under his broad powers to execute the laws, the President can undoubtedly create ad hoc bodies for purposes of
investigating reported crimes. The President, however, has to observe the limits imposed on him by the
constitutional plan: he must respect the separation of powers and the independence of other bodies which have
their own constitutional and statutory mandates, as discussed above. Contrary to what J. Antonio Eduardo B.
Nachura claims in his Dissent, the President cannot claim the right to create a public office in the course of
implementing the law, as this power lodged exclusively in Congress. An investigating body, furthermore, must
operate within the Executive branch; the President cannot create an office outside the Executive department.

These legal realities spawned the problems that the Solicitor General created for himself when he made
conflicting claims about the Truth Commission during the oral arguments. For accuracy, the excerpts from the
oral arguments are best quoted verbatim.109
Associate Justice Nachura: Mr. Solicitor General, most of my questions have actually been asked already and
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there are few things that I would like to be clarified on. Well, following the questions asked by Justice Carpio, I
would like a clarification from you, a definite answer, is the Truth Commission a public office?

Solicitor General Cadiz: No, Your Honor.

Associate Justice Nachura: Ah, you mean it is not a public office?

Solicitor General Cadiz: It is not a public office in the concept that it has to be created by Congress, Your
Honor.
Associate Justice Nachura: Oh, come on, I agree with you that the President can create public offices, that was
what, ah, one of the questions I asked Congressman Lagman.

Solicitor General Cadiz: Thank you, your Honor.

Associate Justice Nachura: Because he was insisting that only Congress could create public office although, he
said, the President can create public offices but only in the context of the authority granted under the
Administrative Code of 1987. So, it is a public office?

Solicitor General Cadiz: Yes, Your Honor.

Associate Justice Nachura: This is definite, categorical. You are certain now that Truth Commission
(interrupted)

Solicitor General Cadiz: Yes, Your Honor, under the Office of the President Proper, yes, Your Honor.
Associate Justice Nachura: Again?

Solicitor General Cadiz: That this Truth Commission is a public office, Your Honor, created under the Office of
the President.
Associate Justice Nachura: Okay, created under the Office of the President, because it is the President who
created it. And the President can create offices only within the executive department. He cannot create a public
office outside of the executive department, alright.

Solicitor General Cadiz: Yes, Your Honor.

Associate Justice Nachura: Okay. So, the Commissioners who are appointed are what, Presidential Assistants?
Are they Presidential Assistants?

Solicitor General Cadiz: They are Commissioners, Your Honor.

Associate Justice Nachura: They are, therefore, alter-egos of the President?

Solicitor General Cadiz: No, Your Honor. There is created a Truth Commission, and Commissioners are
appointed and it so stated here that they are independent.
Associate Justice Nachura: Aha, okay.

Solicitor General Cadiz: Of the Office of the President.

Associate Justice Nachura: Are you saying now that the Commissioners are not under the power and control of
the President of the Philippines?

Solicitor General Cadiz: It is so stated in the Executive Order, Your Honor.

Associate Justice Nachura: Aha, alright. So, the Truth Commission is not an office within the executive
department, because it is not under the power of control of the President, then, Section 17 of Article VII would
not apply to them, is that it?

Solicitor General Cadiz: Your Honor, the President has delineated his power by creating an Executive Order
which created the Commission, which says, that this is an independent body, Your Honor.
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Associate Justice Nachura: Okay. So, what you are saying is, this is a creation of the President, it is under the
Presidents power of control, but the President has chosen not to exercise the power of control by declaring that
it shall be an independent body?

Solicitor General Cadiz: Yes, Your Honor.

Associate Justice Nachura: That is your position. I would like you to place that in your memorandum and see. I
would like to see how you will develop that argument.

The Solicitor General, despite his promise to respond through his Memorandum, never bothered to explain
point-by-point his unusual positions and conclusions during the oral arguments, responding only with
generalities that were not responsive or in point.110

Specifically, while admitting that the Truth Commission is a "creation" of the President under his office
pursuant to the latters authority under the Administrative Code of 1987, the Solicitor General incongruously
claimed that the Commission is "independent" of the Office of the President and is not under his control.
Mercifully, J. Nachura suggested that the President may have created a body under his control but has chosen
not to exercise the power of control by declaring that it is an independent body, to which the Solicitor General
fully agreed.

Truth to tell (no pun intended), the Solicitor General appears under these positions to be playing a game of
smoke and mirrors with the Court. For purposes of the creation of the Truth Commission, he posits that the
move is fully within the Presidents authority and in the performance of his executive functions. This claim, of
course, must necessarily be based on the premise that execution is by the President himself or by people who
are within the Executive Department and within the Presidents power of supervision and control, as the
President cannot delegate his powers beyond the Executive Department. At the same time, he claims that the
Commissioners (whom he refuses to refer to as Presidential Assistants or as alter egos of the President) 111 are
independent of the President, apparently because the President has waived his power of control over them.

All these necessarily lead to the question: can the President really create an office within the Executive branch
that is independent of his control? The short answer is he cannot, and the short reason again is the constitutional
plan. The execution and implementation of the laws have been placed by the Constitution on the shoulders of
the President and on none other.112 He cannot delegate his executive powers to any person or entity outside the
Executive department except by authority of the Constitution or the law (which authority in this case he does
not have), nor can he delegate his authority to undertake fact-finding as an incident of his executive power, and
at the same time take the position that he has no responsibility for the fact-finding because it is independent of
him and his office.

Under the constitutional plan, the creation of this kind of office with this kind of independence is lodged only in
the Legislature.113 For example, it is only the Legislature which can create a body like the National Labor
Relations Commission whose decisions are final and are neither appealable to the President nor to his alter ego,
the Secretary of Labor.114 Yet another example, President Corazon Aquino herself, because the creation of an
independent commission was outside her executive powers, deemed it necessary to act pursuant to a legislative
fiat in constituting the first Davide Commission of 1989.115

Apparently, the President wanted to create a separate, distinct and independent Commission because he wants
to continuously impress upon the public his audience in the second forum that this Commission can tell the
"truth" without any control or prompting from the Office of the President and without need of waiting for
definitive word from those constitutionally-assigned to undertake this task. Here, truth-telling again rears its
ugly head and is unmasked for what it really is an attempt to bypass the constitutional plan on how crimes are
investigated and resolved with finality.

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Otherwise stated, if indeed the President can create the Commission as a fact-finding or investigating body, the
Commission must perforce be an entity that is within the Executive branch and as such is subject to the control
and supervision of the President. In fact, the circumstances surrounding the existence of the Commission
already outlined above in terms of its processes, facilities, budget and staff cannot but lead to control.
Likewise, if indeed the Truth Commission is under the control of the President who issued the EO with openly-
admitted political motivation,116 then the Solicitor Generals representation about the Commissions
independently-arrived "truth" may fall under the classification of a smoke and mirror political move. Sad to
state, the Solicitor General chose to aim for the best of all worlds in making representations about the creation
and the nature of the Commission. We cannot allow this approach to pass unnoticed and without the
observations it deserves.

If the President wants a truly independent Commission, then that Commission must be created through
an act of Congress; otherwise, that independent Commission will be an unconstitutional body. Note as
added examples in this regard that previous presidential fact-finding bodies, created either by Executive or
Administrative Orders (i.e., Feliciano, Melo, Zearosa and IIRC Commissions), were all part of the Executive
department and their findings, even without any express representation in the orders creating them, were
necessarily subject to the power of the President to review, alter, modify or revise according to the best
judgment of the President. That the President who received these commissions reports did not alter the
recommendations made is not an argument that the President can create an "independent" commission, as the
Presidents receiving the commissions reports could have, but simply did not, choose to interfere with these past
commissions findings.

In sum, this Court cannot and should not accept an arrangement where: (1) the President creates an office
pursuant to his constitutional power to execute the laws and to his Administrative Code powers to reorganize
the Executive branch, and (2) at the same time or thereafter allow the President to disavow any link with the
created body or its results through a claim of independence and waiver of control. This arrangement bypasses
and mocks the constitutional plan on the separation of powers; among others, it encroaches into Congress
authority to create an office. This consequence must necessarily be fatal for the arrangement is inimical to the
doctrine of separation of powers whose purpose, according to Father Joaquin Bernas, is:

to prevent concentration of powers in one department and thereby to avoid tyranny. But the price paid for the
insurance against tyranny is the risk of a degree of inefficiency and even the danger of gridlock. As Justice
Brandeis put it, "the doctrine of separation of powers was adoptednot to promote efficiency but to preclude
the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction
incident to the distribution of governmental powers among the three departments, to save the people from
autocracy."117

Indeed, to allow one department of government, without the authority of law or the Constitution, to be granted
the authority to bestow an advanced imprimatur of "truth" bespeaks of a concentration of power that may well
overshadow any initiative to combat graft and corruption; in its own way, this grant itself is an open invitation
to the very evils sought to be avoided.

E. VIOLATIONS OF THE RIGHTS OF INVESTIGATED PERSONS

E.1 Violation of Personal Rights

Separately from the above effects, truth-telling as envisioned under the EO, carries prejudicial effects on the
persons it immediately targets, namely: the officials, employees and private individuals alleged to have
committed graft and corruption during the previous administration. This consequence proceeds from the above
discussed truth-telling premise that whether the Commission reports (recommending the charging of specific

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individuals) are proven or not in the appropriate courts the Commissions function of truth-telling function
would have been served and the Commission would have effectively acted against the charged individuals.

The most obvious prejudicial effect of the truth-telling function on the persons investigated is on their persons,
reputation and property. Simply being singled out as "charged" in a truth-telling report will inevitably mean
disturbance of ones routines, activities and relationships; the preparation for a defense that will cost money,
time and energy; changes in personal, job and business relationships with others; and adverse effects on jobs
and businesses. Worse, reputations can forever be tarnished after one is labelled as a participant in massive graft
and corruption.

Conceivably, these prejudicial effects may be dismissed as speculative arguments that are not justified by any
supporting evidence and, hence, cannot effectively be cited as factual basis for the invalidity of the EO.
Evidence, however, is hardly necessary where the prejudicial effects are self-evident, i.e., given that the
announced and undisputed government position that truth-telling per se, in the manner envisioned by the EO
and its implementing rules, is an independent objective the government wants to achieve. When the government
itself has been heard on the "truth," the probability of prejudice for the individual charged is not only a
likelihood; it approaches the level of certainty.

In testing the validity of a government act or statute, such potential for harm suffices to invalidate the
challenged act; evidence of actual harm is not necessary in the way it is necessary for a criminal conviction or to
justify an award for damages. In plainer terms, the certainty of consequent damage requires no evidence or
further reasoning when the government itself declares that for as long as the "story" of the allegedly massive
graft and corruption during the past administration is told, the Commission would have fulfilled one of its
functions to satisfaction; under this reckless approach, it is self-evident that the mistaken object of the "truth"
told must necessarily suffer.

In the context of this effect, the government statement translates to the message: forget the damage the persons
investigated may suffer on their persons and reputation; forget the rights they are entitled to under the
Constitution; give primacy to the story told. This kind of message, of course, is unacceptable under a
Constitution that establishes the strongest safeguards, through the Bill of Rights, in favor of the individuals
right to life, security and property against the overwhelming might of the government.

E.2 Denial of the right to a fair criminal trial.

The essence of the due process guarantee in a criminal case, as provided under Section 14(1) of the
Constitution, is the right to a fair trial. What is fair depends on compliance with the express guarantees of the
Constitution, and on the circumstances of each case.

When the Commissions report itself is characterized, prior to trial, and held out by the government to be the
true story of the graft and corruption charged, the chances of individuals to have a fair trial in a subsequent
criminal case cannot be very great.

Consider on this point that not even the main actors in the criminal justice system the Ombudsman, the
Sandiganbayan and even this Court can avoid the cloud of "untruth" and a doubtful taint in their integrity after
the government has publicized the Commissions findings as the truth. If the rulings of these constitutional
bodies themselves can be suspect, individual defenses for sure cannot rise any higher.

Where the government simply wants to tell its story, already labelled as true, well ahead of any court
proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion that news of
government scandals generate, it does not require a leap of faith to conclude that an accused brought to court
against overwhelming public opinion starts his case with a less than equal chance of acquittal. The presumption
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of innocence notwithstanding, the playing field cannot but be uneven in a criminal trial when the accused enters
trial with a government-sponsored badge of guilt on his forehead.118 The presumption of innocence in law
cannot serve an accused in a biased atmosphere pointing to guilt in fact because the government and public
opinion have spoken against the accused.

Viewed from the perspective of its cause, the prejudicial publicity, that adversely affects the chances of an
accused for a fair trial after the EO has done its job, is not the kind that occurs solely because of the identity of
the individual accused. This prejudice results from a cause systemic to the EO because of its truth-telling feature
that allows the government to call its proceedings and reports a process of truth-telling where the tales cannot
but be true. This kind of systemic aberration has no place in the countrys dispensation of criminal justice
system and should be struck down as invalid before it can fully work itself into the criminal justice system as an
acceptable intervention.

F. THE TRUTH COMMISSION AND THE EQUAL PROTECTION CLAUSE

The guarantee of equal protection of the law is a branch of the right to due process embodied in Article III,
Section 1 of the Constitution. It is rooted in the same concept of fairness that underlies the due process clause.
In its simplest sense, it requires equal treatment, i.e., the absence of discrimination, for all those under the same
situation. An early case, People v. Cayat, 119 articulated the requisites determinative of valid and reasonable
classification under the equal protection clause, and stated that it must

(1) rest on substantial distinctions;

(2) be germane to the purpose of the law;

(3) not be limited to existing conditions only; and

(4) apply equally to all members of the same class.

In our jurisdiction, we mainly decide equal protection challenges using a "rational basis" test, coupled with a
"deferential" scrutiny of legislative classifications and a reluctance to invalidate a law unless there is a showing
of a clear and unequivocal breach of the Constitution. 120 Our views on the matter, however, have not remained
static, and have been attuned to the jurisprudential developments in the United States on the levels of scrutiny
that are applied to determine the acceptability of any differences in treatment that may result from the law. 121

Serrano v. Gallant Maritime Services, Inc.122 summarizes the three tests employed in this jurisdiction as
follows:

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in
a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to
be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate scrutiny in which the
government must show that the challenged classification serves an important state interest and that the
classification is at least substantially related to serving that interest; and c) strict judicial scrutiny in which a
legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to
the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the
government to prove that the classification is necessary to achieve a compelling state interest and that it is
the least restrictive means to protect such interest. [Emphasis supplied]

The most exacting of the three tests is evidently the strict scrutiny test, which requires the government to show
that the challenged classification serves a compelling state interest and that the classification is necessary to
serve that interest.123 Briefly stated, the strict scrutiny test is applied when the challenged statute either:
139
 (1) classifies on the basis of an inherently suspect characteristic; or

(2) infringes fundamental constitutional rights.

In these situations, the usual presumption of constitutionality is reversed, and it falls upon the government to
demonstrate that its classification has been narrowly tailored to further compelling governmental interests;
otherwise, the law shall be declared unconstitutional for violating the equal protection clause. 124

In EO 1, for the first time in Philippine history, the Executive created a public office to address the "reports of
graft and corruption of such magnitude that shock and offend the moral and ethical sensibilities of the people,
committed.during the previous administration" through fact-finding, policy formulation and truth-
telling.125 While fact-finding has been undertaken by previous investigative commissions for purposes of
possible prosecution and policy-formulation, a first for the current Truth Commission is its task of truth-telling.
The Commission not only has to investigate reported graft and corruption; it also has the authority to announce
to the public the "truth" regarding alleged graft and corruption committed during the previous administration.

EO 1s problem with the equal protection clause lies in the truth-telling function it gave the Truth Commission.

As extensively discussed earlier in this Opinion, truth-telling is not an ordinary task, as the Commissions
reports to the government and the public are already given the imprimatur of truth way before the allegations of
graft and corruption are ever proven in court. This feature, by itself, is a unique differential treatment that
cannot but be considered in the application of the jurisprudential equal protection clause requirements.

Equally unique is the focus of the Commissions investigation - it solely addresses alleged graft and corruption
committed during the past administration. This focus is further narrowed down to "third level public officers
and higher, their co-principal, accomplices and accessories from the private sector, if any, during the previous
administration."126 Under these terms, the subject of the EO is limited only to a very select group the highest
officials, not any ordinary government official at the time. Notably excluded under these express terms are third
level and higher officials of other previous administrations who can still be possibly be charged of similar levels
of graft and corruption they might have perpetrated during their incumbency. Likewise excepted are the third
level officials of the present administration who may likewise commit the same level of graft and corruption
during the term of the Commission.

Thus, from the points of truth-telling and the focus on the people to be investigated, at least a double layer of
differential treatment characterizes the Truth Commissions investigation. Given these disparate treatment, the
equal protection question that arises is: does the resulting classification and segregation of third level officials of
the previous administration and their differential treatment rest on substantial distinctions? Stated more plainly,
is there reasonable basis to differentiate the officials of the previous administration, both from the focus given to
them in relation with all other officials as pointed out above, and in the truth-telling treatment accorded to them
by the Commission?

Still a deeper question to be answered is: what level of scrutiny should be given to the patent discrimination in
focus and in treatment that the EO abets? Although this question is stated last, it should have been the initial
consideration, as its determination governs the level of scrutiny to be accorded; if the strict scrutiny test is
appropriate, the government, not the party questioning a classification, carries the burden of showing that
permissible classification took place. This critical consideration partly accounts, too, for the relegation to the
last, among the EOs cited grounds for invalidity, of the equal protection clause violation; the applicable level
of scrutiny may depend on the prior determination of whether, as held in Serrano, the disparate treatment is
attended by infringement of fundamental constitutional rights.

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"Fundamental rights" whose infringement leads to strict scrutiny under the equal protection clause are those
basic liberties explicitly or implicitly guaranteed in the Constitution. Justice Carpio-Morales, although in dissent
in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 127 elaborated on this point when
she said:

Most fundamental rights cases decided in the United States require equal protection analysis because these
cases would involve a review of statutes which classify persons and impose differing restrictions on the ability
of a certain class of persons to exercise a fundamental right. Fundamental rights include only those basic
liberties explicitly or implicitly guaranteed by the U.S. Constitution. And precisely because these statutes affect
fundamental liberties, any experiment involving basic freedoms which the legislature conducts must be
critically examined under the lens of Strict Scrutiny.

Fundamental rights which give rise to Strict Scrutiny include the right of procreation, the right to marry, the
right to exercise First Amendment freedoms such as free speech, political expression, press, assembly, and so
forth, the right to travel, and the right to vote. [Emphasis supplied]

In the present case, as shown by the previously cited grounds for the EOs invalidity, EO No. 1 infringes the
personal due process rights of the investigated persons, as well as their constitutional right to a fair trial.
Indisputably, both these rights one of them guaranteed under Section 1, Article III, and under Section 14 of
the same Article are, by jurisprudential definition, fundamental rights. With these infringements, the question
now thus shifts to the application of the strict scrutiny test an exercise not novel in this jurisdiction.

In the above-cited Central Bank Employees Association, Inc. case, 128 we stated:

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded
recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference
stops where the classification violates a fundamental right, or prejudices persons accorded special
protection by the Constitution. When these violations arise, this Court must discharge its primary role as the
vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional
limitations. Rational basis should not suffice.

xxx

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of
prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to
be more strict. A weak and watered down view would call for the abdication of this Courts solemn duty to
strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor
committing the unconstitutional act is a private person or the government itself or one of its instrumentalities.
Oppressive acts will be struck down regardless of the character or nature of the actor. [Underscoring supplied]

Stripped of the usual deference accorded to it, the government must show that a compelling state interest exists
to justify the differential treatment that EO 1 fosters.

Serrano v. Gallant Maritime Services, Inc.129 helpfully tells us the compelling state interest that is critical in a
strict scrutiny examination:

What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the
Constitution and calibrated by history. It is akin to the paramount interest of the state for which some individual
liberties must give way, such as the public interest in safeguarding health or maintaining medical standards, or
in maintaining access to information on matters of public concern.

141
In this same cited case, the Court categorically ruled that "the burden is upon the government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least restrictive means to
protect such interest."130

On its face, the compelling state interest the EO cites is the "urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the government and to put a closure to them by
the filing of the appropriate cases against those involved if warranted, and to deter others from committing the
evil, restore the peoples faith and confidence in the Government and in their public servants." 131 Under these
terms, what appears important to the government as means or mediums in its fight against graft and corruption
are (1) to expose the graft and corruption the past administration committed; (2) to prosecute the malefactors, if
possible; and (3) to set an example for others. Whether a compelling State interest exists can best be tested
through the prism of the means the government has opted to utilize.

In the usual course and irrespective of who the malefactors are and when they committed their transgressions,
grafters and corruptors ought to be prosecuted. This is not only a goal but a duty of government. Thus, by itself,
the prosecution that the EO envisions is not any different from all other actions the government undertakes day
to day under the criminal justice system in proceeding against the grafters and the corrupt. In other words,
expressed as a duty, the compelling drive to prosecute must be the same irrespective of the administration under
which the graft and corruption were perpetrated. If indeed this is so, what compelling reasons can there be to
drive the government to use the EO and its unusual terms in proceeding against the officials of the previous
administration?

If the EOs terms are to be the yardstick, the basis for the separate focus is the "extent and magnitude" of the
reported graft and corruption which "shock and offend the moral and ethical sensibilities of the people." What
this "extent and magnitude" is or what specific incidents of massive graft are referred to, however, have been
left vague. Likewise, no explanation has been given on why special measures i.e., the special focus on the
targeted officials, the creation of a new office, and the grant of truth-telling authority have been taken.

Effectively, by acting as he did, the President simply gave the Commission the license to an open hunting
season to tell the "truth" against the previous administration; the Commission can investigate an alleged single
billion-peso scam, as well as transactions during the past administration that, collectively, may reach the same
amount. Only the Commission, in its wisdom, is to judge what allegations or reports of graft and corruption to
cover for as long as these were during the past administration. In the absence of any specific guiding principle
or directive, indicative of its rationale, the conclusion is unavoidable that the EO carries no special compelling
reason to single out officials of the previous administration; what is important is that the graft be attributed to
the previous administration. In other words, the real reason for the EOs focus lies elsewhere, not necessarily in
the nature or extent of the matters to be investigated.

If, as strongly hinted by the Solicitor General, dissatisfaction exists regarding the Ombudsmans zeal, efforts,
results, and lack of impartiality, these concerns should be addressed through the remedies provided under the
Constitution and the laws, not by bypassing the established remedies under these instruments. Certainly, the
remedy is not through the creation of new public office without the authority of Congress.

Every successful prosecution of a graft and corruption violation ought to be an opportunity to set an example
and to send a message to the public that the government seriously intends to discharge its duties and
responsibilities in the area of graft and corruption. To be sure, the conviction of a third level officer is a high
profile accomplishment that the government can and should announce to all as evidence of its efforts and of the
lesson that the conviction conveys. This governments accomplishment, however, does not need to be against an
official or officials of the previous administration in order to be a lesson; it can be any third level or higher
official from any administration, including the present. In fact, the present administrations serious intent in
fighting graft may all the more be highlighted if it will also proceed against its own people.
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It is noteworthy that the terms of the EO itself do not provide any specific reason why, for purposes of
conveying a message against graft and corruption, the focus should be on officials of the previous
administration under the EOs special truth-telling terms. As mentioned above, the extent of the alleged graft
and corruption during the previous administration does not appear to be a sufficient reason for distinction under
the EOs vague terms. Additionally, if a lesson for the public is really intended, the government already has
similar successful prosecutions to its credit and can have many more graphic examples to draw from; it does not
need to be driven to unusual means to show the graft and corruption committed under the previous
administration. The host of examples and methodologies already available to the government only demonstrate
that the focus on, and differential treatment of, specific officials for public lesson purposes involves a
classification unsupported by any special overriding reason.

Given the lack of sufficiently compelling reasons to use two (2) of the three (3) objectives or interests the
government cited in EO 1, what is left of these expressed interests is simply the desire to expose the graft and
corruption the previous administration might have committed. Interestingly, the EO itself partly provides the
guiding spirit that might have moved the Executive to its intended expose as it unabashedly points to the
Presidents promise made in the last election "Kung walang corrupt, walang mahirap."132 There, too, is the
Solicitor Generals very calculated statement that truth-telling is an end in itself that the EO wishes to achieve.

Juxtaposing these overt indicators with the EOs singleness of focus on the previous administration, what
emerges in bold relief is the conclusion that the EO was issued largely for political ends: the President wants his
election promise fulfilled in a dramatic and unforgettable way; none could be more so than criminal
convictions, or at least, exposure of the "truth" that would forever mark his political opponents; thus, the focus
on the previous administration and the stress on establishing their corrupt ways as the "truth."

Viewed in these lights, the political motivation behind the EO becomes inescapable. Political considerations, of
course, cannot be considered a legitimate state purpose as basis for proper classification. 133 They may be
specially compelling but only for the point of view of a political party or interest, not from the point of view of
an equality-sensitive State.

In sum, no sufficient and compelling state interest appears to be served by the EO to justify the differential
treatment of the past administrations officials. In fact, exposure of the sins of the previous administration
through truth-telling should not even be viewed as "least restrictive" as it is in fact a means with pernicious
effects on government and on third parties.

For these reasons, the conclusion that the EO violates the equal protection clause is unavoidable.

G. A FEW LAST WORDS

Our ruling in this case should not in any way detract from the concept that the Judiciary is the least dangerous
branch of government. The Judiciary has no direct control over policy nor over the national purse, in the way
that the Legislature does. Neither does it implement laws nor exercise power over those who can enforce laws
and national policy. All that it has is the power to safeguard the Constitution in a manner independent of the two
other branches of government. Ours is merely the power to check and ensure that constitutional powers and
guarantees are observed, and constitutional limits are not violated.

Under this constitutional arrangement, the Judiciary offers the least threat to the people and their rights, and the
least threat, too, to the two other branches of government. If we rule against the other two branches of
government at all in cases properly brought before us, we do so only to exercise our sworn duty under the
Constitution. We do not prevent the two other branches from undertaking their respective constitutional roles;
we merely confine them to the limits set by the Constitution.

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This is how we view our present action in declaring the invalidity of EO 1. We do not thereby impugn the
nobility of the Executives objective of fighting graft and corruption. We simply tell the Executive to secure this
objective within the means and manner the Constitution ordains, perhaps in a way that would enable us to fully
support the Executive.

To be sure, no cause exists to even impliedly use the term "imperial judiciary" 134 in characterizing our action in
this case.

This Court, by constitutional design and for good reasons, is not an elective body and, as already stated above,
has neither reason nor occasion to delve into politics the realm already occupied by the two other branches of
government. It cannot exercise any ascendancy over the two other branches of government as it is, in fact,
dependent on these two branches in many ways, most particularly for its budget, for the laws and policies that
are the main subjects for its interpretation, and for the enforcement of its decisions. While it has the power to
interpret the Constitution, the Judiciary itself, however, is subject to the same Constitution and, for this reason,
must in fact be very careful and zealous in ensuring that it respects the very instrument it is sworn to safeguard.
We are aware, too, that we "cannot be the repository of all remedies"135 and cannot presume that we can cure all
the ills of society through the powers the Constitution extended to us. Thus, this Court by its nature and
functions cannot be in any way be "imperial," nor has it any intention to be so. Otherwise, we ourselves shall
violate the very instrument we are sworn to uphold.

As evident in the way this Court resolved the present case, it had no way but to declare EO invalid for the many
reasons set forth above. The cited grounds are neither flimsy nor contrived; they rest on solid legal bases.
Unfortunately, no other approach exists in constitutional interpretation except to construe the assailed
governmental issuances in their best possible lights or to reflect these effects in a creative way where these
approaches are at all possible. Even construction in the best lights or a creative interpretation, however, cannot
be done where the cited grounds are major, grave and affect the very core of the contested issuance the
situation we have in the present case.

Nor can this Court be too active or creative in advocating a position for or against a cause without risking its
integrity in the performance of its role as the middle man with the authority to decide disputed constitutional
issues. The better (and safer) course for democracy is to have a Court that holds on to traditional values,
departing from these values only when these values have become inconsistent with the spirit and intent of the
Constitution.

In the present case, as should be evident in reading the ponencia and this Separate Opinion, we have closely
adhered to traditional lines. If this can be called activism at all, we have been an activist for tradition. Thereby,
we invalidated the act of the Executive without however foreclosing or jeopardizing his opportunity to work for
the same objective in some future, more legally reasoned, and better framed course of action.

SEPARATE OPINION

BERSAMIN, J.:

I register my full concurrence with the Majoritys well reasoned conclusion to strike down Executive Order No.
1 (E.O. No. 1) for its incurable unconstitutionality.

I share and adopt the perspectives of my colleagues in the Majority on why the issuance has to be struck down. I
render this Separate Opinion only to express some thoughts on a few matters.

I
Locus Standi of Petitioners
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I hold that the petitioners have locus standi.

In particular reference to the petitioners in G.R. No. 193036, I think that their being incumbent Members of the
House of Representatives gave them the requisite legal standing to challenge E. O. No. 1 as an impermissible
intrusion of the Executive into the domain of the Legislature. Indeed, to the extent that the powers of Congress
are impaired, so is the power of each Member, whose office confers a right to participate in the exercise of the
powers of that institution; consequently, an act of the Executive that injures the institution of Congress causes a
derivative but nonetheless substantial injury that a Member of Congress can assail. 1 Moreover, any intrusion of
one Department in the domain of another Department diminishes the enduring idea underlying the incorporation
in the Fundamental Law of the time-honored republican concept of separation of powers.

Justice Mendozas main opinion, which well explains why the petitioners have locus standi, is congruent with
my view on the matter that I expressed in De Castro v. Judicial and Bar Council, et al.,2 viz:

Black defines locus standi as "a right of appearance in a court of justice on a given question." In public or
constitutional litigations, the Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of public officials and offices
involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome
of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:

The question on legal 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." Accordingly, it has been held that
the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.

It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining
whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail
the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result." Vera was followed in Custodio v. President of the Senate, Manila Race
Horse Trainers Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v.
Secretary of Public Works.

Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be
waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court
liberalized the approach when the cases had "transcendental importance." Some notable controversies whose
petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v.
Dinglasan.

In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by
the petition due to their "far-reaching implications," even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting
ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or
validity of laws, regulations, and rulings.

145
However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional
executive or legislative action rests on the theory that the petitioner represents the public in general. Although
such petitioner may not be as adversely affected by the action complained against as are others, it is enough that
he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the
vindication of a public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is
not surprising, for even if the issue may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly
explains why:

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in
a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, howeverthe
people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayers suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied."

xxx

In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of any
petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of the
requirement.

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to
remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not
to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise. In
Agan, Jr. v. Philippine International Air Terminals Co., Inc., we pointed out: "Standing is a peculiar concept in
constitutional law because in some cases, suits are not brought by parties who have been personally injured by
the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually
sue in the public interest." But even if, strictly speaking, the petitioners "are not covered by the definition, it is
still within the wide discretion of the Court to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised."

II
The President Has No Power to Create A Public Office

A public office may be created only through any of the following modes, namely: (a) by the Constitution; or (b)
by statute enacted by Congress; or (c) by authority of law (through a valid delegation of power).3

The power to create a public office is essentially legislative, and, therefore, it belongs to Congress. It is not
shared by Congress with the President, until and unless Congress enacts legislation that delegates a part of the
power to the President, or any other officer or agency.

Yet, the Solicitor General contends that the legal basis for the Presidents creation of the Truth Commission
through E. O. No. 1 is Section 31, Chapter 10, Book III, of the Administrative Code of 1987.

Section 31, Chapter 10, Book III, of the Administrative Code of 1987, which reads:
146
Section 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:

1. Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System, by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another;

2. Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

3. Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.

nowhere refers to the creation of a public office by the President. On the contrary, only a little effort is needed
to know from reading the text of the provision that what has been granted is limited to an authority for
reorganization through any of the modes expressly mentioned in the provision.

The Truth Commission has not existed before E. O. No. 1 gave it life on July 30, 2010. Without a doubt, it is a
new office, something we come to know from the plain words of Section 1 of E. O. No. 1 itself, to wit:

Section 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION", which shall primarily seek and find the truth on, and toward
this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral
and ethical sensibilities of the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent
collegial body.

If the Truth Commission is an entirely new office, then it is not the result of any reorganization undertaken
pursuant to Section 31, Chapter 10, Book III, of the Administrative Code of 1987. Thus, the contention of the
Solicitor General is absolutely unwarranted.

Neither may the creation of the Truth Commission be made to rest for its validity on the fact that the
Constitution, through its Section 17, Article VII, invests the President with the duty to ensure that the laws are
faithfully executed. In my view, the duty of faithful execution of the laws necessarily presumes the prior
existence of a law or rule to execute on the part of the President. But, here, there is no law or rule that the
President has based his issuance of E. O. No. 1.

I cannot also bring myself to accept the notion that the creation of the Truth Commission is traceable to the
Presidents power of control over the Executive Department. It is already settled that the Presidents power of
control can only mean "the power of an officer to alter, modify, or set aside what a subordinate officer had done
in the performance of his duties, and to substitute the judgment of the former for that of the latter." 4 As such, the
creation by the President of a public office like the Truth Commission, without either a provision of the
Constitution or a proper law enacted by

Congress authorizing such creation, is not an act that the power of control includes.
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III
Truth Commission Replicates and Usurps the
Duties and Functions of the
Office of the Ombudsman

I find that the Truth Commission replicates and usurps the duties and functions of the Office of the
Ombudsman. Hence, the Truth Commission is superfluous and may erode the public trust and confidence in the
Office of the Ombudsman.

The Office of the Ombudsman is a constitutionally-created quasi-judicial body established to investigate and
prosecute illegal acts and omissions of those who serve in the Government. Section 5, Article XI of the 1987
Constitution enumerates the powers, functions, and duties of the Office of the Ombudsman, including the power
to:

(1) 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.

xxx

(5) Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents.

xxx

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

The Framers of the Constitution, particularly those of them who composed the Committee on Accountability of
Public Officers, intended the Office of the Ombudsman to be strong and effective, in order to enable the Office
of the Ombudsman to carry out its mandate as the Protector of the People against the inept, abusive, and corrupt
in the Government. This intent is clear from the proceedings on the establishment of the Office of the
Ombudsman, as follows:

SPONSORSHIP SPEECH OF COMMISSIONER MONSOD

MR. MONSOD. Madam President, the Committee on Accountability of Public Officers is respectfully
submitting its proposed Article in the Constitution, and we would just want to make a few remarks on the
articles and sections that we have included.

xxx

With respect to the Sandiganbayan and the Tanodbayan, the Committee decided to make a distinction between
the purely prosecutory function of the Tanodbayan and the function of a pure Ombudsman who will use the
prestige and persuasive powers of his office. To call the attention of government officials to any impropriety,
misconduct or injustice, we conceive the Ombudsman as a champion of the citizens x x x The concept of the
Ombudsman here is admittedly a little bit different from the 1973 concept x x x The idea here is to address
ourselves to the problem that those who have unlawfully benefitted from the acquisition of public property over
the years, through technicalities or practice, have gained immunity and that, therefore, the right of the people to
recover should be respected x x x.5

xxx
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SPONSORSHIP SPEECH OF COMMISSIONER COLAYCO

MR. COLAYCO. Thank you, Madam President.

The Committee is proposing the creation of an office which can act in a quick, inexpensive and effective
manner on complaints against the administrative inaction, abuse and arbitrariness of government officials and
employees in dealing with the people. x x x.

xxx

[W]e have proposed as briefly as possible in our resolution an office which will not require any formal
condition for the filing of a complaint. Under our proposal, a person can file a complaint even by telephone and
without much ado, the office of the Ombudsman is under obligation to see to it that the complaint is acted upon,
not merely attended to but acted upon. x x x. If the employee admits that there was reason behind the complaint,
he is told to do what the complainant wanted him to do without much ado. And then that is followed up by the
corresponding report to the department of the government which has supervision over the employee at fault,
with the proper recommendation.

xxx

Under our proposal, the Ombudsman is empowered to investigate, to inquire into and to demand the production
of documents involving transactions and contracts of the government where disbursement of public funds is
reported. x x x [t]he main thrust is action; the disciplinary or punitive remedy is secondary. On a higher level
then, the Ombudsman is going to be the eyes and ears of the people. Where administrative action demanded is
not forthcoming x x x he (Ombudsman) is authorized to make public the nature of the complaint and the
inaction of the official concerned, x x x.6

xxx

SPONSORSHIP SPEECH OF COMMISSIONER NOLLEDO

MR. NOLLEDO. Thank you, Madam President.

xxx

Madam President, the creation of an Ombudsman x x x is in answer to the crying need of our people for an
honest and responsive government. The office of the Ombudsman as proposed by the Committee on
Accountability of Public Officers, x x x is really an institution primarily for the citizens as against the
malpractices and corruption in the government. As an official critic, the Ombudsman will study the law, the
procedure and practice in the government, and make appropriate recommendations for a more systematic
operation of the governmental machinery, free from bureaucratic inconveniences. As a mobilizer, the
Ombudsman will see to it that there be a steady flow of services to the individual consumers of government.
And as a watchdog, the Ombudsman will look after the general, as well as specific, performances of all
government officials and employees so that the law may not be administered with an evil eye or an uneven
hand.7

On the other hand, E. O. No. 1 enumerates the objectives of the creation of the Truth Commission, thus:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

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WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle
that a public office is a public trust and mandates that public officers and employees, who are servants of the
people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead modest lives;

xxx

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and
confidence in the Government and in their public servants;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of
the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.

xxx

A comparison between the aforequoted objectives of the Office of the Ombudsman and the Truth Commission
quickly reveals that the Truth Commission is superfluous, because it replicates or imitates the work of the
Office of the Ombudsman. The result is that the Truth Commission can even usurp the functions, duties, and
responsibilities of the Office of the Ombudsman. That usurpation is not a desirable result, considering that the
public faith and trust in the Office of the Ombudsman, as a constitutionally-created office imbued with specific
powers and duties to investigate and prosecute graft and corruption, may be eroded.

ACCORDINGLY, I vote to grant the petitions.

SEPARATE OPINION

PEREZ, J.:

Executive Order No. 1 of President Benigno S. Aquino III Creating the Philippine Truth Commission of 2010
violates Article XI, Section 5 and Section 7 together with Section 13(1) and (7) and related provisions in
Paragraphs (2), (3), (4), (5) and (6) of the same Section 7, all of the Philippine Constitution.

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Particularized, the presidential issuance offends against the independence of the Office of the Ombudsman;
defies the protection against legislation of the mandates of the Ombudsman; and defiles the bestowal of these
mandates by their reappointment to the lesser body. The presidential creation, if unchecked, would, under the
layer of good intentions, sully the integrity of the organic act which, for law to rule, can be touched by no one
except the sovereign people and only by the way and manner they have ordained. This is a democratic original.
The sovereign people can, of course, choose to cut the essential ties, scatter the existing entirety and slay the
standing system. That did not happen. The sovereign elected to stay put; to stay in the present ordinance.
Everyone must honor the election. And there can be no permissible disregard, even in part, of the free and
deliberate choice.

The proposition is truly significant in this study of the questioned executive order. The country has had a
historic revolution that gave the people the chance to right the wrong that shoved the nation on the verge. A new
charter was written. But the topic of Executive Order No. 1, accountability of public officers, was rewritten and
as the same constitutional heading. The injunction that public office is a public trust, including its meaning and
import, was copied from the otherwise discarded document. And having adopted the objective of the old, the
new law assumed likewise the means for the end which are the anti-graft institutions of 1973,to wit, the special
graft court named Sandiganbayan and the Ombudsman, the corruption investigator and prosecutor then known
as the Tanodbayan both of which were, in the 1973 Charter, ordered created by legislation.

The transplant of idea and mechanism, the adoption of the ends and the assumption of the means of 1973 leads
to the definite conclusion that the present Constitution is an affirmance that, driven by the breadth of corruption
in public office needing enduring solutions, there must be no less than a constitutionally secured institution with
impregnable authority to combat corruption. This is the Ombudsman.

Uy vs. Sandiganbayan,1 chronicled the origins of the Ombudsman. It was there recounted that:

In the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to
constitutionalize the office of the Ombudsman, to give it political independence and adequate powers to enforce
its recommendations. The 1973 Constitution mandated the legislature to create an office of the Ombudsman to
be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations,
but shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate
body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read:

Section 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan,
which shall receive and investigate complaints relative to public office, including those in government-owned
or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by
law, file and prosecute the corresponding criminal, civil or administrative case before the proper court of body.

Uy went on to enumerate the implementing presidential decrees, issued as legislation, namely Presidential
Decree No. 1487 creating the Office of the Ombudsman known as the Tanodbayan; Presidential Decree No.
1607 broadening the authority of the Tanodbayan to investigate administrative acts of administrative agencies;
Presidential Decree 1630 reorganizing the Office of the Tanodbayan and vesting the powers of the Special
Prosecutor in the Tanodbayan himself.

The events at and following the ratification of the 1987 Constitution, as likewise historified in Uy, must be
made part of this writers position:

With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present
Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner
against public officials or employees of the government or any subdivision, agency or instrumentality thereof,

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including government-owned or controlled corporations, and to notify the complainants of the action taken and
the result thereof. He possesses the following powers, functions and duties:

1. 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;

2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or
any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled
corporation with original charter, to perform and expedite any act or duty required by law, or to stop,
prevent and correct any abuse or impropriety in the performance of duties.

3. Direct the officer concerned to take appropriate action against a public official or employee at fault,
and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.

4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered into
by his office involving the disbursements or use of public funds or properties, and report any irregularity
to the Commission on Audit for appropriate action.

5. Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents.

6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards of
ethics and efficiency.

8. Promulgate its rules or procedure and exercise such other powers or perform such functions or duties
as may be provided by law.

As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the
Special Prosecutor which continued to function and exercise its powers as provided by law, except those
conferred on the Office of the Ombudsman created under the 1987 Constitution.

The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by
President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987.

In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the
Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman
not only the duty to receive and relay the peoples grievances, but also the duty to investigate and prosecute for
and in their behalf, civil, criminal and administrative offenses committed by government officers and employees
as embodied in Sections 15 and 11 of the law.2

Clear then from the chronicle, that, as it was at the time of its constitutionalization in 1973, the power of the
Ombudsman "shall not be limited to receiving complaints and making recommendations, but shall also include
the filing and prosecution of criminal xxx cases before the appropriate body xxx." More importantly, the grant
of political independence to the Ombudsman which was the spirit behind the 1973 provisions was specifically
stated in the 1987 Constitution. Thus:
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Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to
be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao.
A separate Deputy for the Military establishment may likewise be appointed. (Underscoring supplied.)

Of direct relevance and application to the case at bar is the reason behind the constitutionalization of the
Ombudsman. Again, we refer to Uy3 citing Cortez, Redress of Grievance and the Philippine Ombudsman
(Tanodbayan):

In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the
peoples medium for airing grievances and seeking redress against abuses and misconduct in the government.
These offices were conceived with the view of raising the standard in public service and ensuring integrity and
efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with
receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office,
and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several
other agencies which performed basically the same functions of complaints-handling and investigation. These
were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential
Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-
Graft Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and
Government Operations and the Office of the Citizens counselor, both under President Ferdinand Marcos. It
was observed, however, that these agencies failed to realize their objective for they did not enjoy the political
independence necessary for the effective performance of their function as government critic. Furthermore, their
powers extended to no more than fact-finding and recommending.

The lack of political independence of these presidential commissions, to which was attributed their failure to
realize their objectives, was clarified during the deliberations of the Constitutional Commission on what is now
Article XI of the Constitution with, as already observed, the same heading used in 1973, "Accountability of
Public Officials." The Commissioners also alluded to the unsuccessful presidential attempts.

In his sponsorship speech, Commissioner Colayco, Vice-Chairman of the Committee on Accountability of

Public Officers, articulated:

In 1950, for instance, President Quirino created the Integrity Board in an attempt to formalize the procedure for
executive direction and control of the bureaucracy. This Board lasted for six months. When President
Magsaysay took over the reins of government in 1953, he created the Presidential Complaints and Action
Committee. The primary purpose of this Committee was to expedite action on complaints received by the
Office of the President against the manner in which the officials of the executive departments and offices were
performing the duties entrusted to them by law, or against their acts, conduct or behavior. xxx. But again
politics came in this office did not last long. Two months after President Magsaysays death, the office was
abolished.

Next, President Garcia created his own Presidential Committee on Administration, Performance and Efficiency
[PCAPE]. Again this office did not last long and was replaced by the Presidential Agency on Reforms and
Government Operations or PARGO under the regime of President Marcos. 4

As Commissioner Colayco pointed out in the continuation of his sponsorship speech: although these programs
were "good per se," the succeeding Presidents discarded them as the incoming Presidents generally tend to
abandon the policies and programs of their predecessors a political barrier to the eventual success of these
bodies. He concluded by saying that "[t]he intention, therefore, of our proposal is to constitutionalize the office
so that it cannot be touched by the Presidents as they come and go."

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It may thus be said that the 1987 Constitution completed the Ombudsmans constitutionalization which was
started in 1973. The past Constitution mandated the creation by the legislature, the National Security Assembly,
later the Batasang Pambansa, of an office of the Ombudsman, which mandate, incidentally, was given also for
the creation of a special court, the Sandiganbayan. The present Constitution, while allowing the continuation of
the Sandiganbayan and leaving its functions and jurisdiction to provisions "by law," itself created "the
independent Office of the Ombudsman" and itself determined its powers, functions and duties. The
independence of the Ombudsman is further underscored by the constitutional orders that the Ombudsman and
his Deputies shall be appointed by the President from a list prepared by the Judicial and Bar Council which
appointments shall require no confirmation; that the Ombudsman and his Deputies shall have the rank of
Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same
salary, which shall not be decreased during their term of office; that the Office of the Ombudsman shall enjoy
fiscal autonomy and its approved annual appropriations shall be automatically and regularly released; and that
the Ombudsman may only be removed from office by impeachment. 5

It is with the ground and setting just described that Executive Order No. 1 created the Philippine Truth
Commission. Naturally, the Order had to state that the Philippine Truth Commission was created by the
President of the Republic of the Philippines further describing the act as the exercise of his "continuing
authority to reorganize the Office of the President." The Order specified that the budget of the Commission
shall be provided by the Office of the President and even its furniture and equipment will come from the Office
of the President. More significantly, a basic premise of the creation is the Presidents battlecry during his
campaign for the Presidency in the last elections "kung walang corrupt, walang mahirap," which is considered a
"solemn pledge that if elected, he would end corruption and the evil it breeds." So much so that the issuance
states that "a comprehensive final report shall be published upon directive of the President" upon whose
directive likewise, interim reports may issue from time to time.

The Philippine Truth Commission anchored itself on the already constitutionalized principle that public office is
a public trust. It adopted the already defined goal to circle and contain corruption, an enemy of the good state
already identified way back in 1973. What Executive Order No. 1 did was to shorten the sight and set it from
the incumbents standpoint. Therefrom, it fixed its target at "reported cases of graft and corruption involving
third level public officers and higher, their co-principals, accomplice and accessories from the private sector"
and further pinpointed the subjects as "third level public officers during the previous administration." For this
commission, the Philippine Truth Commission was presidentially empowered as an "investigative body" for a
thorough fact finding investigation, thereafter to:

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional authorities, by
means of a special or interim report and recommendation, all evidence on corruption of public officers and
employees and their private sector co-principals, accomplice or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and
corruption under pertinent applicable laws.

Having thus taken account of the foregoing, this writer takes the following position:

1. In light of the constitutionally declared and amply underscored independence of the Office of the
Ombudsman, which declaration is winnowed wisdom from the experienced inherent defects of presidential
creations, so real and true that the Ombudsmans constitutionalization was adopted to completion even if from
the charter of an overthrown regime, Executive Order No. 1 cannot pass the present constitutional test.
Executive Order No. 1 is unconstitutional precisely because it was issued by the President. As articulated by
Commissioner Colayco of the Commission that resurrected the Ombudsman, "our proposal is to
constitutionalize the office so that it cannot be touched by the Presidents as they come and go." And as this
Court stated, repeating the observation regarding the erstwhile presidential anti-graft commissions, such

154
commissions failed to realize their objective because they did not enjoy the political independence necessary for
the effective performance of a government critic.

Relevant too are the words of Commissioner Regalado:

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not
necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of the
Office of the President because it is now a constitutional creation, so that the insidious tentacles of politics, as
has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity
to render service to Juan dela Cruz.6

Verily, the Philippine Truth Commission is a defiance of the constitutional wisdom that established the
politically independent Ombudsman for one of its reasons for being is the very campaign battlecry of the
President "kung walang corrupt, walang mahirap." Not that there is anything wrong with the political slogan.
What is wrong is the pursuit of the pledge outside the limits of the Constitution. What is wrong is the creation
by the President himself of an Ombudsman-like body while there stands established an Ombudsman,
constitutionally created especially because of unsuccessful presidential antecedents, and thus made independent
from presidential prerogative.

2. A simple comparison will show that likeness of the Philippine Truth Commission with the Ombudsman. No
such likeness is permitted by the Constitution.

It can easily be seen that the powers of the Truth Commission to: 1) identify and determine the reported cases of
graft and corruption which it will investigate; and 2) collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to investigate, 7 are the same as the power of
the Ombudsman to investigate any illegal, unjust, improper, or inefficient act or omission of any public official,
employee, office or agency.8

The authority of the Truth Commission to require any agency, official or employee of the Executive Branch to
produce documents, books, records and other papers9 mirrors the authority of the Ombudsman to direct
concerned government officials to furnish it with copies of documents relating to contracts or transactions
entered into by the latters office involving the disbursement or use of public funds or properties. 10

Likewise, the right to obtain information and documents from the Senate, the House of Representatives and the
courts,11 granted by Executive Order No. 1 to the Truth Commission, is analogous to the license of the
Ombudsman to request any government agency for assistance and information and to examine pertinent records
and documents.12

And, the powers of the Truth Commission to invite or subpoena witnesses, take their testimonies, administer
oaths13 and impose administrative disciplinary action for refusal to obey subpoena, take oath or give
testimony14are parallel to the powers to administer oaths, issue subpoena, take testimony and punish for
contempt or subject to administrative disciplinary action any officer or employee who delays or refuses to
comply with a referral or directive granted by Republic Act (RA) 6770 15 to the Ombudsman.

If Executive Order No. 1 is allowed, there will be a violation of Section 7 of Article XI, the essence of which is
that the function and powers (enumerated in Section 13 of Article XI) conferred on the Ombudsman created
under the 1987 Constitution cannot be removed or transferred by law. Section 7 states:

Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall
continue to function and exercise its powers as now or hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created under this Constitution.
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There is a self-evident reason for the shield against legislation provided by Section 7 in protection of the
functions conferred on the Office of the Ombudsman in Section 13. The Ombudsman is a constitutional office;
its enumerated functions are constitutional powers.

So zealously guarded are the constitutional functions of the Ombudsman that the prohibited assignment of the
conferred powers was mentioned in Section 7 in relation to the authority of the Tanodbayan which, while
renamed as Office of the Special Prosecutor, remained constitutionally recognized and allowed to "continue to
function and exercise its powers as now or hereafter may be provided by law."

The position of the Office of the Special Prosecutor, as a continuing office with powers "as may be provided by
law" vis--vis the Ombudsman created by the 1987 Constitution would be unraveled by subsequent law and
jurisprudence. Most apt is Zaldivar vs. Sandiganbayan,16 which said:

Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent Tanodbayan) is charged
with the duty 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.

The Constitution likewise provides that:

The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to
function and exercise its powers as now or hereafter may be provided by law, except those conferred on the
Office of the Ombudsman created under this Constitution.

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (called
Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN
to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of
criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost
effective February 2, 1987. From that time, he has been divested of such authority.

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the
Tanodbayan (Ombudsman) and can investigate and prosecute cases only upon the latters authority or orders.
The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do
so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of
PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Special Prosecutor
in connection with the cases he is ordered to investigate. (Underscoring supplied.)

The ruling was clear: the duty to investigate contained in Section 13(1) having been conferred on the Office of
the Ombudsman, left the then Tanodbayan without authority to conduct preliminary investigation except upon
orders of the Ombudsman. The message was definite. The conferment of plenary power upon the Ombudsman
to investigate "any act or omission of any public official xxx when such act or omission appears to be illegal,
unjust, improper or inefficient" cannot, after 1987 and while the present Constitution remains, be shared even
by the body previously constitutionalized as vested with such authority, even if there is such assignment "by
law."

Indeed, the subsequent law obeyed Section 7 as correctly read in Zaldivar. Thus, in Republic Act No. 6770, an
Act Providing For the Functional And Structural Organization of the Office of the Ombudsman and For Other
Purposes, it was made clear in Section 11(3) second sentence that "the Office of the Special Prosecutor shall be
an organic component of the Office of the Ombudsman and shall be under the supervision and control of the
Ombudsman."
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Constitutional history, specific constitutional provisions, jurisprudence and current statute combine to say that
after the ratification of the Constitution in 1987, no body can be given "by law" any of the powers, functions
and duties already conferred on the Ombudsman by Section 13, Article XI of the Constitution. As already
shown, the Truth Commission insofar as concerns the mentioned third level officers or higher of the previous
administration appropriates, not just one but virtually, all of the powers constitutionally enumerated for the
Ombudsman. The violation of Section 7 in relation to Section 13 of Article XI of the Constitution is evident.

3. No comfort is given to the respondents by the fact that, as mentioned in Honasan II vs. Panel of Investigating
Prosecutors of the Department of Justice,17 there are "jurisprudential declarations" that the Ombudsman and the
Department of Justice (DOJ) have concurrent jurisdiction. Concurrence of jurisdiction does not allow
concurrent exercise of such jurisdiction. Such is so that the Ombudsman Act specifically states in Section 15
that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan precisely the kind
of cases covered by the Philippine Truth Commission and proceeds to define "primary jurisdiction" by again,
specifically, stating that the Ombudsman "may take over, at any stage, from any investigation of such cases."
This primary jurisdiction was the premise when a majority of the Court in Honasan discussed the relevance of
OMB-DOJ Joint Circular No. 95-001 (which provides that the preliminary investigation and prosecution of
offenses committed by public officers in relation to office filed with the Office of the Prosecutor shall be "under
the control and supervision of the Office of the Ombudsman") in relation to Sections 2 and 4, Rule 112 of the
Revised Rules on Criminal Procedure on Preliminary Investigation, which concerns the review of the resolution
of the investigating prosecutor in such cases. Honasan would conclude that the authority of the DOJ prosecutors
to conduct preliminary investigation of offenses within the original jurisdiction of the Sandiganbayan is subject
to the qualification:

xxx that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their
investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action.
Also, the prosecutor cannot dismiss the complaint without prior written authority of the Ombudsman or his
deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and
without prior written authority of the Ombudsman, or his deputy.18 (Underscoring in the original)

Three separate opinions, two of which were dissents were submitted in Honasan. Justice Vitug said that the
investigating fiscal must be particularly deputized by the Ombudsman and the investigation must be conducted
under the supervision and control of the Ombudsman; 19 Justice Ynares-Santiago discussed at length the concept
of primary jurisdiction and took the position that:20

Where the concurrent authority is vested in both the Department of Justice and the Office of the Ombudsman,
the doctrine of primary jurisdiction should operate to restrain the Department of Justice from exercising its
investigative authority if the case will likely be cognizable by the Sandiganbayan. In such cases, the Office of
the Ombudsman should be the proper agency to conduct the preliminary investigation over such an offense, it
being vested with the specialized competence and undoubted probity to conduct the investigation.

Justice Sandoval-Gutierrez was more straightforward:21

While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code and special laws,
however, this jurisdiction is not plenary or total. Whenever the Constitution or statute vests jurisdiction over the
investigation and prosecution of certain crimes in an office, the DOJ has no jurisdiction over those crimes. In
election offenses, the Constitution vests the power to investigate and prosecute in the Commission on Elections.
In crimes committed by public officers in relation to their office, the Ombudsman is given by both the
Constitution and the statute the same power of investigation and prosecution. These powers may not be
exercised by the DOJ. xxx

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At the very least, therefore, the prosecutor, in Sandiganbayan cases must, after investigation transmit the
records and their resolution to the Ombudsman whose prior written authority is needed before the prosecutor
can dismiss a complaint or file an information in which latter instance, a deputization of the fiscal is
additionally needed. Even as this writer submits that the position of the minority in Honasan hews far better to
the Constitution since, as already observed, the Ombudsmans authority excludes even the Tanodbayan which
used to be the constitutionally recognized holder of the power, the further submission is that the majority ruling
to the effect that the Ombudsman is the supervisor of the prosecutor who investigates graft in high places,
nonetheless illegalizes the Philippine Truth Commission.

Respondents main reliance is that

Unlike that of the OMB or DOJ which conducts formal investigation as a result of criminal complaints filed
before them, or upon reports, the Truth Commission conducts fact-finding investigation preliminary to the filing
of a complaint that could lead to a criminal investigation. 22

If the Philippine Truth Commission would, indeed, conduct only fact-finding investigations preliminary to a
criminal investigation, then the foregoing discussion would truly be irrelevant. The fact, however, is that the
Philippine Truth Commission is, to use the Solicitor Generals phrase a "criminal investigator" or one who
conducts a preliminary investigation for the prosecution of a criminal case.

Detailing the powers and functions of the Philippine Truth Commission, Section 2 of Executive Order No. 1
says that the Commission shall identify and determine the reported cases of such graft and corruption which it
will investigate (Section 2[a]) and collect, receive, review and evaluate evidence related to or regarding the
cases of large scale corruption which it has chosen to investigate (Sec. 2[b]). As aforenoted, the Philippine
Truth Commissions power to investigate graft and corruption is no different from the constitutional power of
the Ombudsman to investigate any act of any public official when such act appears to be illegal, unjust,
improper, or inefficient. The Philippine Truth Commission cannot avoid the comparison by differentiating
"formal investigation" or "criminal investigation" which it says is conducted by the Ombudsman or the DOJ,
from the "fact-finding investigation" of the Philippine Truth Commission. Let us go back to Zaldivar. There it
was as much as stated that the power to investigate mentioned in Section 13(1) of the 1987 Constitution is the
authority to conduct preliminary investigation which authority was removed from the Tandobayan called
Special Prosecutor when it was given to the Ombudsman. This equivalence was affirmed in Acop vs. Office of
the Ombudsman,23 where it was stated:

In view of the foregoing, it is evident that the petitioners have not borne out any distinction between "the duty to
investigate" and "the power to conduct preliminary investigations;" neither have the petitioners established that
the latter remains with the Tanodbayan, now the Special Prosecutor. Thus, this Court can only reject the
petitioners first proposition.

Such established definition of "investigation" of graft and corruption cases, especially for the purpose of
determining the authority of one body in relation to another, which is exactly one of the issues in this case, must
be read into Executive Order No. 1. No source citation is needed for the generally accepted rule that the words
used in a legal document, indeed one which is intended to be a law, has the meaning that is established at the
time of the laws promulgation. "Investigation" in Section 1(a) of Executive Order No. 1 is the same as
preliminary investigation and its conduct by the Truth Commission cannot be independent of the Ombudsman.
The Truth Commission cannot exist outside the Ombudsman. Executive Order No. 1 so places the Truth
Commission and, is, therefore unconstitutional.

Indeed, Executive Order No. 1 itself pronounces that what it empowers the Philippine Truth Commission with
is the authority of preliminary investigation. Section 2(g) of the executive order states:

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Turn over from time to time, for expeditious prosecution, to the appropriate prosecutional authorities, by means
of a special or interim report and recommendation, all evidence on corruption of public officers and employees
and their private sector co-principals, accomplice or accessories, if any, when in the course of
its investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and
corruption under pertinent applicable laws. (Underscoring supplied.)

Investigation to find reasonable ground to believe "that they are liable for graft and corruption under applicable
laws" is preliminary investigation as defined in Rule 112, Section 1 of the Rules of Criminal Procedure, which
states:

Section 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or

proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof, and should be held for trial.

Moreover, as clearly stated in Section 2(g) of Executive Order No. 1, the Philippine Truth Commission will be
more powerful than the DOJ prosecutors who are required, after their investigation, to transmit the records and
their resolution for appropriate action by the Ombudsman or his deputy, which action is taken only after
a review by the Ombudsman. Section 4 of Rule 112 states that:

xxxx

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on
the ground that a probable cause exists, the latter may, by himself, file the information against the respondent,
or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary
investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio,
the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the
officers of the Office of the Ombudsman.

In other words, under existing Rule which follows the statutorily defined primary jurisdiction of the
Ombudsman in obeisance to the constitutional conferment of authority, the Ombudsman reviews and may
reverse or modify the resolution of the investigating prosecutor. In the case of the Philippine Truth Commission,
the Ombudsman not only shares its constitutional power but, over and above this, it is divested of any and all
investigatory power because the Philippine Truth Commissions finding of "reasonable ground" is final and
unreviewable and is turned over to the Ombudsman solely for "expeditious prosecution."

4. There is an attempt by the Solicitor General to read around the explicitness of Section 2(g) of Executive
Order No. 1. Thus, skirting the words "for expeditious prosecution" and their obvious meanings as just
discussed, the respondents argue that:

The Truth Commission will submit its recommendation to, among others, the OMB and to the "appropriate
prosecutorial authorities" which then shall exercise their constitutional and statutory powers and jurisdiction to
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evaluate the recommendation or endorsements of the Truth Commission. While findings of the Truth
Commission are recommendatory, the facts gathered by the Commission will decisively aid prosecutorial
bodies in supporting possible indictments for violations of anti-graft laws. Moreover, the policy
recommendations to address corruption in government will be invaluable to the Executives goal to realize its
anti-corruption policies.24

xxxx

The Reports of the Truth Commission will serve as bases for possible prosecutions and as sources of policy
options xxx.

Fact gathering as basis for preliminary investigation and not as preliminary investigation itself and basis for
prosecution, is, seemingly, the function respondents want to attribute to the Philippine Truth Commission to
escape the obvious unconstitutional conferment of Ombudsman power. That is no route out of the bind. Fact
gathering, fact finding, indeed truth finding is, as much as investigation as preliminary investigation, also
constitutionally conferred on the Ombudsman. Section 12 of Article XI states:

Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or employees of the government, or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate
cases, notify the complainants of the action taken and the result thereof.

The Ombudsman on its own investigates any act or omission of any public official when such act or omission
appears to be illegal (Section 13(1), Article XI of the Constitution). The power is broad enough, if not specially
intended, to cover fact-finding of the tenor that was given to the Philippine Truth Commission by Executive
Order No. 1 which is:

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption
which it has chosen to investigate xxx.

And, the objective of the Philippine Truth Commission pointed to by the Solicitor General which is to make
findings for "policy recommendations to address corruption in government" and to serve as "sources of policy
options" is exactly the function described for and ascribed to the Ombudsman in Section 13(7), Art. XI of the
Constitution:

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

Moreover, as at the outset already pointed out, the power of the Philippine Truth Commission to obtain
information and documents from the Congress and the Judiciary [Section 2(c) and (d) of Executive Order No. 1]
is a reproduction of the Ombudsman powers provided for in Section 13 (4) and (5), Article XI of the
Constitution.

Virtually, another Ombudsman is created by Executive Order No. 1. That cannot be permitted as long as the
1987 Constitution remains as the fundamental law.

5. To excuse the existence of the presidentially created, manned, funded and equipped Truth Commission side-
by-side with the Constitutionally created and empowered Ombudsman, the Solicitor General provides the very
argument against the proposition. In page 75 of his memorandum, the Solicitor General says that:

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The concerned agencies need not wait until the completion of the investigation of the Truth Commission before
they can proceed with their own investigative and prosecutorial functions. Moreover, the Truth Commission
will, from time to time, publish special interim reports and recommendations, over and above the
comprehensive final report. If any, the preliminary reports may aid the concerned agencies in their
investigations and eventually, in the filing of a complaint or information. (Underscoring supplied)

Apparently, the statement proceeds from the position that "the power of the OMB to investigate offenses
involving public officers or employees is not exclusive but is concurrent with other similarly authorized
agencies of the government."25 Without cutting off from the discussions that the concurrence of jurisdiction of
the Ombudsman with any other body should be read to mean that at the very least any finding by any other
body is reviewable by the Ombudsman and that in full obedience to the Constitution, graft cases against high
officials should be investigated alone by or under the aegis of the Ombudsman, it need only be repeated that
concurrence of jurisdiction does not allow concurrent exercise of jurisdiction. This is the reason why we have
the rule that excludes any other concurrently authorized body from the body first exercising jurisdiction. This is
the reason why forum shopping is malpractice of law.

The truth is, in the intensely political if not partisan matter of "reports of graft and corruption xxx committed by
public officers xxx, if any, during the previous administration," there can only be one finding of truth. Any
addition to that one finding would result in din and confusion, a babel not needed by a nation trying to be one.
And this is why all that fall under the topic accountability of public officers have been particularized and
gathered under one authority - The Ombudsman. This was done by the Constitution. It cannot be undone as the
nation now stands and remains.

WHEREFORE, I vote for the grant of the petition and the declaration of Executive Order No. 1 as
unconstitutional.

DISSENTING OPINION

CARPIO, J.:

The two petitions before this Court seek to declare void Executive Order No. 1, Creating the Philippine Truth
Commission of 2010 (EO 1), for being unconstitutional.

In G.R. No. 192935, petitioner Louis C. Biraogo (Biraogo), as a Filipino citizen and as a taxpayer, filed a
petition under Rule 65 for prohibition and injunction. Biraogo prays for the issuance of a writ of preliminary
injunction and temporary restraining order to declare EO 1 unconstitutional, and to direct the Philippine Truth
Commission (Truth Commission) to desist from proceeding under the authority of EO 1.

In G.R. No. 193036, petitioners Edcel C. Lagman, Rodolfo B. Albano, Jr., Simeon A. Datumanong, and
Orlando B. Fua, Sr. (Lagman, et al.), as Members of the House of Representatives, filed a petition under Rule
65 for certiorari and prohibition. Petitioners Lagman, et al. pray for the issuance of a temporary restraining
order or writ of preliminary injunction to declare void EO 1 for being unconstitutional.

The Powers of the President

Petitioners Biraogo and Lagman, et al. (collectively petitioners) assail the creation of the Truth Commission.
They claim that President Benigno S. Aquino III (President Aquino) has no power to create the Commission.
Petitioners objections are mere sound bites, devoid of sound legal reasoning.

On 30 July 2010, President Aquino issued EO 1 pursuant to Section 31, Chapter 10, Title III, Book III of
Executive Order No. 292 (EO 292).1 Section 31 reads:
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Section 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the
immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff
Support System, by abolishing, consolidating or merging units thereof or transferring functions
from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies. (Emphasis supplied)

The law expressly grants the President the "continuing authority to reorganize the administrative structure of the
Office of the President," which necessarily includes the power to create offices within the Office of the
President Proper. The power of the President to reorganize the Office of the President Proper cannot be disputed
as this power is expressly granted to the President by law. Pursuant to this power to reorganize, all Presidents
under the 1987 Constitution have created, abolished or merged offices or units within the Office of the President
Proper, EO 1 being the most recent instance. This Court explained the rationale behind the Presidents
continuing authority to reorganize the Office of the President Proper in this way:

x x x The law grants the President this power in recognition of the recurring need of every President to
reorganize his office "to achieve simplicity, economy and efficiency." The Office of the President is the nerve
center of the Executive Branch. To remain effective and efficient, the Office of the President must be capable of
being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies.
After all, the Office of the President is the command post of the President. This is the rationale behind the
Presidents continuing authority to reorganize the administrative structure of the Office of the
President.2 (Emphasis supplied)

The Power To Execute Faithfully the Laws

Section 1, Article VI of the 1987 Constitution states that "[t]he executive power is vested in the President of the
Philippines." Section 17, Article VII of the 1987 Constitution states that "[t]he President shall have control of
all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully
executed."3 Before he enters office, the President takes the following oath prescribed in Section 5, Article VII
of the 1987 Constitution: "I do solemnly swear that I will faithfully and conscientiously fulfill my duties as
President of 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."4

Executive power is vested exclusively in the President. Neither the Judiciary nor the Legislature can execute the
law. As the Executive, the President is mandated not only to execute the law, but also to execute faithfully the
law.

To execute faithfully the law, the President must first know the facts that justify or require the execution of the
law. To know the facts, the President may have to conduct fact-finding investigations. Otherwise, without
knowing the facts, the President may be blindly or negligently, and not faithfully and intelligently, executing the
law.

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Due to time and physical constraints, the President cannot obviously conduct by himself the fact-finding
investigations. The President will have to delegate the fact-finding function to one or more subordinates. Thus,
the President may appoint a single fact-finding investigator, or a collegial body or committee. In recognizing
that the President has the power to appoint an investigator to inquire into facts, this Court held:

Moreover, petitioner cannot claim that his investigation as acting general manager is for the purpose of
removing him as such for having already been relieved, the obvious purpose of the investigation is merely to
gather facts that may aid the President in finding out why the NARIC failed to attain its objectives, particularly
in the stabilization of the prices of rice and corn. His investigation is, therefore, not punitive, but merely an
inquiry into matters which the President is entitled to know so that he can be properly guided in the
performance of his duties relative to the execution and enforcement of the laws of the land. In this sense, the
President may authorize the appointment of an investigator of petitioner Rodriguez in his capacity as acting
general manager even if under the law the authority to appoint him and discipline him belongs to the NARIC
Board of Directors. The petition for prohibition, therefore, has no merit. 5 (Boldfacing and italicization supplied)

The Power To Find Facts

The power to find facts, or to conduct fact-finding investigations, is necessary and proper, and thus inherent in
the Presidents power to execute faithfully the law. Indeed, the power to find facts is inherent not only in
Executive power, but also in Legislative as well as Judicial power. The Legislature cannot sensibly enact a law
without knowing the factual milieu upon which the law is to operate. Likewise, the courts cannot render justice
without knowing the facts of the case if the issue is not purely legal. Petitioner Lagman admitted this during the
oral arguments:

ASSOCIATE JUSTICE CARPIO:

x x x The power to fact-find is inherent in the legislature, correct? I mean, before you can pass a law, you must
determine the facts. So, its essential that you have to determine the facts to pass a law, and therefore, the power
to fact-find is inherent in legislative power, correct?

CONGRESSMAN LAGMAN:

Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

And it is also inherent in judicial power, we must know the facts to render a decision, correct?

CONGRESSMAN LAGMAN:

Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO:

And it is also inherent in executive power that [the] President has to know the facts so that he can faithfully
execute the laws, correct?

CONGRESSMAN LAGMAN:

Yes, Your Honor, in that context (interrupted).

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ASSOCIATE JUSTICE CARPIO:

So (interrupted)

CONGRESSMAN LAGMAN:

Your Honor, in that context, the legislature has the inherent power to make factual inquiries in aid of legislation.
In the case of the Supreme Court and the other courts, the power to inquire into facts [is] in aid of adjudication.
And in the case of the Office of the President, or the President himself [has the power] to inquire into the facts
in order to execute the laws.6

Being an inherent power, there is no need to confer explicitly on the President, in the Constitution or in the
statutes, the power to find facts. Evangelista v. Jarencio7 underscored the importance of the power to find facts
or to investigate:

It has been essayed that the lifeblood of the administrative process is the flow of fact[s], the gathering, the
organization and the analysis of evidence. Investigations are useful for all administrative functions, not only
for rule making, adjudication, and licensing, but also for prosecuting, for supervising and directing, for
determining general policy, for recommending legislation, and for purposes no more specific than
illuminating obscure areas to find out what if anything should be done. An administrative agency may be
authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in
proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial
nature may be taken and may require the attendance of witnesses in proceedings of a purely investigatory
nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate
bodies and make recommendations for actions. (Emphasis supplied)

The Power To Create A Public Office

The creation of a public office must be distinguished from the creation of an ad hoc fact-finding public body.

The power to create a public office is undeniably a legislative power. There are two ways by which a public
office is created: (1) by law, or (2) by delegation of law, as found in the Presidents authority to reorganize his
Office. The President as the Executive does not inherently possess the power to reorganize the Executive
branch. However, the Legislature has delegated to the President the power to create public offices within the
Office of the President Proper, as provided in Section 31(1), Chapter 10, Title III, Book III of EO 292.

Thus, the President can create the Truth Commission as a public office in his Office pursuant to his power to
reorganize the Office of the President Proper.8 In such a case, the President is exercising his delegated power to
create a public office within the Office of the President Proper. There is no dispute that the President possesses
this delegated power.

In the alternative, the President can also create the Truth Commission as an ad hoc body to conduct a fact-
finding investigation pursuant to the Presidents inherent power to find facts as basis to execute faithfully the
law. The creation of such ad hoc fact-finding body is indisputably necessary and proper for the President to
execute faithfully the law. In such a case, members of the Truth Commission may be appointed as Special
Assistants or Advisers of the President,9 and then assigned to conduct a fact-finding investigation. The President
can appoint as many Special Assistants or Advisers as he may need. 10 There is no public office created and
members of the Truth Commission are incumbents already holding public office in government. These
incumbents are given an assignment by the President to be members of the Truth Commission. Thus, the Truth
Commission is merely an ad hoc body assigned to conduct a fact-finding investigation.

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The creation of ad hoc fact-finding bodies is a routine occurrence in the Executive and even in the Judicial
branches of government. Whenever there is a complaint against a government official or employee, the
Department Secretary, head of agency or head of a local government unit usually creates a fact-finding body
whose members are incumbent officials in the same department, agency or local government unit. 11 This is also
true in the Judiciary, where this Court routinely appoints a fact-finding investigator, drawn from incumbent
Judges or Justices (or even retired Judges or Justices who are appointed consultants in the Office of the Court
Administrator), to investigate complaints against incumbent officials or employees in the Judiciary.

The creation of such ad hoc investigating bodies, as well as the appointment of ad hoc investigators, does not
result in the creation of a public office. In creating ad hoc investigatory bodies or appointing ad
hoc investigators, executive and judicial officials do not create public offices but merely exercise a power
inherent in their primary constitutional or statutory functions, which may be to execute the law, to exercise
disciplinary authority, or both. These fact-finding bodies and investigators are not permanent bodies or
functionaries, unlike public offices or their occupants. There is no separate compensation, other than per
diems or allowances, for those designated as members of ad hoc investigating bodies or as ad hoc investigators.

Presidential Decree No. 1416 (PD 1416) cannot be used as basis of the Presidents power to reorganize his
Office or create the Truth Commission. PD 1416, as amended, delegates to the President "continuing authority
to reorganize the National Government,"12 which means the Executive, Legislative and Judicial branches of
government, in addition to the independent constitutional bodies. Such delegation can exist only in a dictatorial
regime, not under a democratic government founded on the separation of powers. The other powers granted to
the President under PD 1416, as amended, like the power to transfer appropriations without conditions and the
power to standardize salaries, are also contrary to the provisions of the 1987 Constitution.13 PD 1416, which
was promulgated during the Martial Law regime to facilitate the transition from the presidential to a
parliamentary form of government under the 1973 Constitution, 14 is now functus officio and deemed repealed
upon the ratification of the 1987 Constitution.

The Presidents power to create ad hoc fact-finding bodies does not emanate from the Presidents power of
control over the Executive branch. The Presidents power of control is the power to reverse, revise or modify
the decisions of subordinate executive officials, or substitute his own decision for that of his subordinate, or
even make the decision himself without waiting for the action of his subordinate. 15 This power of control does
not involve the power to create a public office. Neither does the Presidents power to find facts or his broader
power to execute the laws give the President the power to create a public office.1avvphi1 The President can
exercise the power to find facts or to execute the laws without creating a public office.

Objections to EO 1

There Is No Usurpation of Congress

Power To Appropriate Funds

Petitioners Lagman, et al. argue that EO 1 usurps the exclusive power of Congress to appropriate funds because
it gives the President the power to appropriate funds for the operations of the Truth Commission. Petitioners
Lagman, et al. add that no particular source of funding is identified and that the amount of funds to be used is
not specified.

Congress is exclusively vested with the "power of the purse," recognized in the constitutional provision that "no
money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 16 The specific
purpose of an appropriation law is to authorize the release of unappropriated public funds from the National
Treasury.17

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Section 11 of EO 1 merely states that "the Office of the President shall provide the necessary funds for the
Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible." Section 11 does not direct the National
Treasurer to release unappropriated funds in the National Treasury to finance the operations of the Truth
Commission. Section 11 does not also say that the President is appropriating, or is empowered to appropriate,
funds from the unappropriated funds in the National Treasury. Clearly, there is absolutely no language in EO 1
appropriating, or empowering the President to appropriate, unappropriated funds in the National Treasury.

Section 11 of EO 1 merely states that the Office of the President shall fund the operations of the Truth
Commission. Under EO 1, the funds to be spent for the operations of the Truth Commission have already been
appropriated by Congress to the Office of the President under the current General Appropriations Act. The
budget for the Office of the President under the annual General Appropriations Act always contains a
Contingent Fund18that can fund the operations of ad hoc investigating bodies like the Truth Commission. In this
case, there is no appropriation but merely a disbursement by the President of funds that Congress had already
appropriated for the Office of the President.

The Truth Commission Is Not

A Quasi-Judicial Body

While petitioners Lagman, et al. insist that the Truth Commission is a quasi-judicial body, they admit that there
is no specific provision in EO 1 that states that the Truth Commission has quasi-judicial powers.19

ASSOCIATE JUSTICE CARPIO:

Okay. Now. Lets tackle that issue. Where in the Executive Order is it stated that [the Truth Commission] has a
quasi-judicial power? Show me the provision.

CONGRESSMAN LAGMAN:

There is no exact provision.

There is no language in EO 1 granting the Truth Commission quasi-judicial power, whether expressly or
impliedly, because the Truth Commission is not, and was never intended to be, a quasi-judicial body. The
power of the President to create offices within the Office of the President Proper is a power to create only
executive or administrative offices, not quasi-judicial offices or bodies. Undeniably, a quasi-judicial office or
body can only be created by the Legislature. The Truth Commission, as created under EO 1, is not a quasi-
judicial body and is not vested with any quasi-judicial power or function.

The exercise of quasi-judicial functions involves the determination, with respect to the matter in controversy, of
what the law is, what the legal rights and obligations of the contending parties are, and based thereon and the
facts obtaining, the adjudication of the respective rights and obligations of the parties.20 The tribunal, board or
officer exercising quasi-judicial functions must be clothed with the power to pass judgment on the
controversy.21In short, quasi-judicial power is the power of an administrative body to adjudicate the rights
and obligations of parties under its jurisdiction in a manner that is final and binding, unless there is a proper
appeal. In the recent case of Bedol v. Commission on Elections,22 this Court declared:

Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative
agency to adjudicate the rights of persons before it. It is the power to hear and determine questions of fact to
which the legislative policy is to apply and to decide in accordance with the standards laid down by the law
itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power
when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where
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the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or
administrative duty entrusted to it. In carrying out their quasi-judicial functions the administrative officers or
bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and exercise of discretion in a judicial
nature.23 (Emphasis supplied)

Under EO 1, the Truth Commission primarily investigates reports of graft and corruption and recommends the
appropriate actions to be taken. Thus, Section 2 of EO 1 states that the Truth Commission is "primarily tasked
to conduct a thorough fact-finding investigation of reported cases of graft and corruption and thereafter submit
its findings and recommendations to the President, Congress and the Ombudsman." The President, Congress
and the Ombudsman are not bound by the findings and recommendations of the Truth Commission. Neither are
the parties subject of the fact-finding investigation bound by the findings and recommendations of the Truth
Commission.

Clearly, the function of the Truth Commission is merely investigative and recommendatory in nature. The
Truth Commission has no power to adjudicate the rights and obligations of the persons who come before it.
Nothing whatsoever in EO 1 gives the Truth Commission quasi-judicial power, expressly or impliedly. In short,
the Truth Commission is not a quasi-judicial body because it does not exercise the quasi-judicial power to bind
parties before it with its actions or decisions.

The creation of the Truth Commission has three distinct purposes since it is tasked to submit its findings to the
President, Congress and the Ombudsman. The Truth Commission will submit its findings to the President so
that the President can faithfully execute the law. For example, the Truth Commission may recommend to the
President that Department Secretaries should personally approve disbursements of funds in certain contracts or
projects above a certain amount and not delegate such function to their Undersecretaries. 24 The Truth
Commission will also submit its findings to Congress for the possible enactment by Congress of remedial
legislation. For example, Congress may pass a law penalizing Department Secretaries who delegate to their
Undersecretaries the approval of disbursement of funds contrary to the directive of the President. Lastly, the
Truth Commission will submit its findings to the Ombudsman for possible further investigation of those who
may have violated the law. The Ombudsman may either conduct a further investigation or simply ignore the
findings of the Truth Commission. Incidentally, the Ombudsman has publicly stated that she supports the
creation of the Truth Commission and that she will cooperate with its investigation. 25

That EO 1 declares that the Truth Commission "will act as an independent collegial body" cannot invalidate EO
1. This provision merely means that the President will not dictate on the members of the Truth Commission on
what their findings and recommendations should be. The Truth Commission is free to come out with its own
findings and recommendations, free from any interference or pressure from the President. Of course, as EO 1
expressly provides, the President, Congress and the Ombudsman are not bound by such findings and
recommendations.

There Is No Usurpation of the

Powers of the Ombudsman

Petitioners Lagman, et al. argue that since the Ombudsman has the exclusive jurisdiction to investigate graft and
corruption cases, the Truth Commission encroaches on this exclusive power of the Ombudsman.

There are three types of fact-finding investigations in the Executive branch. First, there is the purely fact-
finding investigation the purpose of which is to establish the facts as basis for future executive action, excluding
the determination of administrative culpability or the determination of probable cause. Second, there is the
administrative investigation to determine administrative culpabilities of public officials and employees. Third,

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there is the preliminary investigation whose sole purpose is to determine probable cause as to the existence and
perpetrator of a crime. These three types of fact-finding investigations are separate and distinct investigations.

A purely fact-finding investigation under the Office of the President is the first type of fact-finding
investigation. Such fact-finding investigation has three distinct objectives. The first is to improve administrative
procedures and efficiency, institute administrative measures to prevent corruption, and recommend policy
options all with the objective of enabling the President to execute faithfully the law. The second is to
recommend to Congress possible legislation in response to new conditions brought to light in the fact-finding
investigation. The third is to recommend to the head of office the filing of a formal administrative charge, or the
filing of a criminal complaint before the prosecutor.

Under the third objective, the fact-finding investigation is merely a gathering and evaluation of facts to
determine whether there is sufficient basis to proceed with a formal administrative charge, or the filing of a
criminal complaint before the prosecutor who will conduct a preliminary investigation. This purely fact-finding
investigation does not determine administrative culpability or the existence of probable cause. The fact-finding
investigation comes before an administrative investigation or preliminary investigation, where administrative
culpability or probable cause, respectively, is determined.

On the other hand, an administrative investigation follows, and takes up, the recommendation of a purely fact-
finding investigation to charge formally a public official or employee for possible misconduct in office.
Similarly, a preliminary investigation is an inquiry to determine whether there is sufficient ground to believe
that a crime has been committed and that the respondent is probably guilty of such crime, and should be held for
trial.26 A preliminary investigations sole purpose is to determine whether there is probable cause to charge a
person for a crime.

Section 15 of Republic Act No. 677027 provides:

SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers,
functions and duties: x x x

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of
his primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government,
the investigation of such cases; x x x (Emphasis supplied)

The Ombudsman has "primary jurisdiction over cases cognizable by the Sandiganbayan." The cases cognizable
by the Sandiganbayan are criminal cases as well as quasi-criminal cases like the forfeiture of unexplained
wealth.28 "[I]n the exercise of this primary jurisdiction" over cases cognizable by the Sandiganbayan, the
Ombudsman "may take over x x x the investigation of such cases" from any investigatory agency of the
Government. The cases covered by the "primary jurisdiction" of the Ombudsman are criminal or quasi-criminal
cases but not administrative cases. Administrative cases, such as administrative disciplinary cases, are not
cognizable by the Sandiganbayan. With more reason, purely fact-finding investigations conducted by the
Executive branch are not cognizable by the Sandiganbayan.

Purely fact-finding investigations to improve administrative procedures and efficiency, to institute

administrative measures to prevent corruption, to provide the President with policy options, to recommend to
Congress remedial legislation, and even to determine whether there is basis to file a formal administrative
charge against a government official or employee, do not fall under the "primary jurisdiction" of the
Ombudsman. These fact-finding investigations do not involve criminal or quasi-criminal cases cognizable by
the Sandiganbayan.
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If the Ombudsman has the power to take-over purely fact-finding investigations from the President or his
subordinates, then the President will become inutile. The President will be wholly dependent on the
Ombudsman, waiting for the Ombudsman to establish the facts before the President can act to execute faithfully
the law. The Constitution does not vest such power in the Ombudsman. No statute grants the Ombudsman such
power, and if there were, such law would be unconstitutional for usurping the power of the President to find
facts necessary and proper to his faithful execution of the law.

Besides, if the Ombudsman has the exclusive power to conduct fact-finding investigations, then even the
Judiciary and the Legislature cannot perform their fundamental functions without the action or approval of the
Ombudsman. While the Constitution grants the Office of the Ombudsman the power to "[i]nvestigate on its own
x x x any act or omission of any public official, employee, office or agency,"29 such power is not exclusive. To
hold that such investigatory power is exclusive to the Ombudsman is to make the Executive, Legislative and
Judiciary wholly dependent on the Ombudsman for the performance of their Executive, Legislative and Judicial
functions.

Even in investigations involving criminal and quasi-criminal cases cognizable by the Sandiganbayan, the
Ombudsman does not have exclusive jurisdiction to conduct preliminary investigations. In Honasan II v. The
Panel of Investigating Prosecutors of the Department of Justice,30 this Court held:

In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate
offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with other government investigating agencies such as
provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the
government, the investigation of such cases.31 (Emphasis supplied)

To repeat, Honasan II categorically ruled that "the Constitution, Section 15 of the Ombudsman Act of 1989
and Section 4 of the Sandiganbayan Law, as amended, do not give the Ombudsman exclusive jurisdiction
to investigate offenses committed by public officials and employees."

The concurrent jurisdiction of the Ombudsman refers to the conduct of a preliminary investigation to determine
if there is probable cause to charge a public officer or employee with an offense, not to the conduct of a purely
administrative fact-finding investigation that does not involve the determination of probable cause. 32 The Truth
Commission is a purely fact-finding body that does not determine the existence of probable cause. There is no
accused or even a suspect before the Truth Commission, which merely conducts a general inquiry on reported
cases of graft and corruption. No one will even be under custodial investigation before the Truth
Commission.33Thus, the claim that the Truth Commission is usurping the investigatory power of the
Ombudsman, or of any other government official, has no basis whatsoever.

In criminal fact-finding investigations, the law expressly vests in the Philippine National Police (PNP) and the
National Bureau of Investigation (NBI) investigatory powers. Section 24 of Republic Act No. 6975 34 provides:

Section 24. Powers and Functions The PNP shall have the following powers and duties:

(a) x x x

xxx

(c) Investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice, and
assist in their prosecution;
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 x x x. (Emphasis supplied)

Section 1 of Republic Act No. 157 also provides:

Section 1. There is hereby created a Bureau of Investigation under the Department of Justice which shall have
the following functions:

(a) To undertake investigation of crimes and other offenses against the laws of the Philippines, upon
its own initiative and as public interest may require;

x x x. (Emphasis supplied)

The PNP and the NBI are under the control of the President. Indisputably, the President can at any time direct
the PNP and NBI, whether singly, jointly or in coordination with other government bodies, to investigate
possible violations of penal laws, whether committed by public officials or private individuals. To say that the
Ombudsman has the exclusive power to conduct fact-finding investigations of crimes involving public officials
and employees is to immobilize our law-enforcement agencies and allow graft and corruption to run riot. The
fact-finding arm of the Department of Justice (DOJ) to investigate crimes, whether committed by public or
private parties, is the NBI.35The DOJ Proper does not conduct fact-finding investigations of crimes, but only
preliminary investigations.

The Truth Commission

Has Subpoena Powers

Section 2 of EO 1 provides that the Truth Commission shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of EO 292, which reads:

Sec. 37. Powers Incidental to Taking of Testimony. - When authority to take testimony or receive evidence is
conferred upon any administrative officer or any non-judicial person, committee, or other body, such authority
shall include the power to administer oaths, summon witnesses, and require the production of documents by
a subpoena duces tecum. (Emphasis supplied)

Section 2(e) of EO 1 confers on the Truth Commission the power to "[i]nvite or subpoena witnesses and take
their testimonies and for that purpose, administer oaths or affirmation as the case may be." Thus, the Truth
Commission, a body authorized to take testimony, can administer oaths and issue subpoena and subpoena duces
tecum pursuant to Section 37, Chapter 9, Book I of EO 292. In fact, this power to administer oaths and to issue
subpoena and subpoena duces tecum is a power of every administrative fact-finding investigative body created
in the Executive, Legislative or Judicial branch. Section 37, Chapter 9, Book I of EO 292 grants such power to
every fact-finding body so created.

The Truth Commission

Has No Contempt Powers

Section 9 of EO 1 provides:

Section 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or personnel who,
without lawful excuse, fails to appear upon subpoena issued by the Commission or who, appearing before the
Commission refuses to take oath or affirmation, give testimony or produce documents for inspection, when
required, shall be subject to administrative disciplinary action. Any private person who does the same may be
dealt with in accordance with law.

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There is no provision in EO 1 that gives the Truth Commission the power to cite persons for contempt. As
explained by Solicitor General Jose Anselmo I. Cadiz, if the person who refuses to obey the subpoena, take oath
or give testimony is a public officer, he can be charged with "defiance of a lawful order," 36 which should mean
insubordination37 if his superior had ordered him to obey the subpoena of the Truth Commission. If the person
is not a public officer or employee, he can only be dealt with in accordance with law, which should mean that
the Truth Commission could file a petition with the proper court to cite such private person in contempt
pursuant to Sections 138 and 939 of Rule 21 of the Rules of Court.

However, the mere fact that the Truth Commission, by itself, has no coercive power to compel any one, whether
a government employee or a private individual, to testify before the Commission does not invalidate the
creation by the President, or by the Judiciary or Legislature, of a purely administrative fact-finding investigative
body. There are witnesses who may voluntarily testify, and bring relevant documents, before such fact-finding
body. The fact-finding body may even rely only on official records of the government. To require every
administrative fact-finding body to have coercive or contempt powers is to invalidate all administrative fact-
finding bodies created by the Executive, Legislative and Judicial branches of government.

The Name "Truth Commission"

Cannot Invalidate EO 1

There is much ado about the words "Truth Commission" as the name of the fact-finding body created under EO
1. There is no law or rule prescribing how a fact-finding body should be named. In fact, there is no law or
rule prescribing how permanent government commissions, offices, or entities should be named. 40 There is also
no law or rule prohibiting the use of the words "Truth Commission" as the name of a fact-finding
body. Most fact-finding bodies are named, either officially or unofficially, after the chairperson of such body,
which by itself, will not give any clue as to the nature, powers or functions of the body. Thus, the name
Feliciano Commission or Melo Commission, by itself, does not indicate what the commission is all about.
Naming the present fact-finding body as the "Truth Commission" is more descriptive than naming it the Davide
Commission after the name of its chairperson.

The name of a government commission, office or entity does not determine its nature, powers or functions. The
specific provisions of the charter creating the commission, office or entity determine its nature, powers or
functions. The name of the commission, office or entity is not important and may even be misleading. For
example, the term Ombudsman connotes a male official but no one in his right mind will argue that a female
cannot be an Ombudsman. In fact, the present Ombudsman is not a man but a woman. In the private sector, the
name of a corporation may not even indicate what the corporation is all about. Thus, Apple Corporation is not
in the business of selling apples or even oranges. An individual may be named Honesto but he may be anything
but honest. All this tells us that in determining the nature, powers or functions of a commission, office or
entity, courts should not be fixated by its name but should examine what it is tasked or empowered to do.

In any event, there is nothing inherently wrong in the words "Truth Commission" as the name of a fact-finding
body. The primary purpose of every fact-finding body is to establish the facts. The facts lead to, or even
constitute, the truth. In essence, to establish the facts is to establish the truth. Thus, the name "Truth
Commission" is as appropriate as the name "Fact-Finding Commission." If the name of the commission created
in EO 1 is changed to "Fact-Finding Commission," the nature, powers and functions of the commission will
remain exactly the same. This simply shows that the name of the commission created under EO 1 is not
important, and any esoteric discourse on the ramifications of the name "Truth Commission" is merely an
academic exercise. Of course, the name "Truth Commission" is more appealing than the worn-out name "Fact-
Finding Commission." Courts, however, cannot invalidate a law or executive issuance just because its
draftsman has a flair for catchy words and a disdain for trite ones. Under the law, a fact-finding commission by
any other name is a fact-finding commission.41

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The Public Will Not Be Deceived that
Findings of Truth Commission Are Final

The fear that the public will automatically perceive the findings of the Truth Commission as the "truth," and any
subsequent contrary findings by the Ombudsman or Sandiganbayan as the "untruth," is misplaced. First, EO 1 is
unequivocally clear that the findings of the Truth Commission are neither final nor binding on the Ombudsman,
more so on the Sandiganbayan which is not even mentioned in EO 1. No one reading EO 1 can possibly be
deceived or misled that the Ombudsman or the Sandiganbayan are bound by the findings of the Truth
Commission.

Second, even if the Truth Commission is renamed the "Fact-Finding Commission," the same argument can also
be raised that the public may automatically perceive the findings of the Fact-Finding Commission as the
unquestionable "facts," and any subsequent contrary findings by the Ombudsman or Sandiganbayan as "non-
factual." This argument is bereft of merit because the public can easily read and understand what EO 1
expressly says that the findings of the Truth Commission are not final or binding but merely
recommendatory.

Third, the Filipino people are familiar with the Agrava Board, 42 a fact-finding body that investigated the
assassination of former Senator Benigno S. Aquino, Jr. The people know that the findings of the Agrava Board
were not binding on the then Tanodbayan or the Sandiganbayan. The Agrava Board recommended for
prosecution 26 named individuals43 but the Tanodbayan charged 40 named individuals44 before the
Sandiganbayan. On the other hand, the Sandiganbayan convicted only 16 of those charged by the Tanodbayan
and acquitted 20 of the accused.45

Fourth, as most Filipinos know, many persons who undergo preliminary investigation and are charged for
commission of crimes are eventually acquitted by the trial courts, and even by the appellate courts. In short, the
fear that the public will be misled that the findings of the Truth Commission is the unerring gospel truth is more
imagined than real.

EO 1 Does Not Violate

The Equal Protection Clause

Petitioners Lagman, et al. argue that EO 1 violates the equal protection clause because the investigation of the
Truth Commission is limited to alleged acts of graft and corruption during the Arroyo administration.

A reading of Section 17 of EO 1 readily shows that the Truth Commissions investigation is not limited to the
Arroyo administration. Section 17 of EO 1 provides:

Section 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a need
to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of cases
and instances of graft and corruption during the prior administrations, such mandate may be extended
accordingly by way of a supplemental Executive Order. (Emphasis supplied)

The President can expand the mandate of the Truth Commission to investigate alleged graft and corruption
cases of other past administrations even as its primary task is to investigate the Arroyo administration. EO 1
does not confine the mandate of the Truth Commission solely to alleged acts of graft and corruption during the
Arroyo Administration.

Section 17 of EO 1 is the same as Section 2(b) of Executive Order No. 1 dated 28 February 1986 issued by
President Corazon Aquino creating the Presidential Commission on Good Government (PCGG Charter).
Section 2(b) of the PCGG Charter provides:
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Section 2. The Commission shall be charged with the task of assisting the President in regard to the following
matters:

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates xxx.

(b) The investigation of such cases of graft and corruption as the President may assign to the
Commission from time to time.

x x x x . (Emphasis supplied)

Thus, under Section 2(b) of the PCGG Charter, the President can expand the investigation of the PCCG even as
its primary task is to recover the ill-gotten wealth of the Marcoses and their cronies. Both EO 1 and the PCGG
Charter have the same provisions on the scope of their investigations. Both the Truth Commission and the
PCGG are primarily tasked to conduct specific investigations, with their mandates subject to expansion by the
President from time to time. This Court has consistently upheld the constitutionality of the PCGG Charter.46

Like Section 2(b) of the PCGG Charter, Section 17 of EO 1 merely prioritizes the investigation of acts of graft
and corruption that may have taken place during the Arroyo administration. If time allows, the President may
extend the mandate of the Truth Commission to investigate other administrations prior to the Arroyo
administration. The prioritization of such work or assignment does not violate the equal protection clause
because the prioritization is based on reasonable grounds.

First, the prescriptive period for the most serious acts of graft and corruption under the Revised Penal Code is
20 years,47 15 years for offenses punishable under the Anti-Graft and Corrupt Practices Act,48 and 12 years for
offenses punishable under special penal laws that do not expressly provide for prescriptive periods. 49 Any
investigation will have to focus on alleged acts of graft and corruption within the last 20 years, almost half of
which or 9 years is under the Arroyo administration.

While it is true that the prescriptive period is counted from the time of discovery of the offense, the "reported
cases"50 of "large scale corruption"51 involving "third level public officers and higher,"52 which the Truth
Commission will investigate, have already been widely reported in media, and many of these reported cases
have even been investigated by the House of Representatives or the Senate. Thus, the prescriptive periods of
these "reported cases" of "large scale corruption" may have already began to run since these anomalies are
publicly known and may be deemed already discovered. 53 These prescriptive periods refer to the criminal acts
of public officials under penal laws, and not to the recovery of ill-gotten wealth which under the Constitution is
imprescriptible.54

Second, the Marcos, Ramos and Estrada administrations were already investigated by their successor
administrations. This alone is incontrovertible proof that the Arroyo administration is not being singled out for
investigation or prosecution.

Third, all the past Presidents, with the exception of Presidents Ramos, Estrada and Arroyo, are already dead.
The possible witnesses to alleged acts of graft and corruption during the Presidencies of the deceased presidents
may also be dead or unavailable. In fact, the only living President whose administration has not been
investigated by its successor administration is President Arroyo.

Fourth, the more recent the alleged acts of graft and corruption, the more readily available will be the witnesses,
and the more easily the witnesses can recall with accuracy the relevant events. Inaction over time means the loss
not only of witnesses but also of material documents, not to mention the loss of public interest.

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Fifth, the 29-month time limit given to the Truth Commission prevents it from investigating other past
administrations.55 There is also the constraint on the enormous resources needed to investigate other past
administrations. Just identifying the transactions, locating relevant documents, and looking for witnesses would
require a whole bureaucracy.

These are not only reasonable but also compelling grounds for the Truth Commission to prioritize the
investigation of the Arroyo administration. To prioritize based on reasonable and even compelling grounds is
not to discriminate, but to act sensibly and responsibly.

In any event, there is no violation of the equal protection clause just because the authorities focus their
investigation or prosecution on one particular alleged law-breaker, for surely a person accused of robbery
cannot raise as a defense that other robbers like him all over the country are not being prosecuted. 56 By the very
nature of an investigation or prosecution, there must be a focus on particular act or acts of a person or a group of
persons.

Indeed, almost every fact-finding body focuses its investigation on a specific subject matter whether it be a
specific act, incident, event, situation, condition, person or group of persons. This specific focus results from the
nature of a fact-finding investigation, which is a necessary and proper response to a specific compelling act,
incident, event, situation, or condition involving a person or group of persons. Thus, the fact-finding
commissions created under the previous Arroyo administration had specific focus: the Feliciano Commission
focused on the Oakwood mutiny, the Melo Commission focused on extra-judicial killings, and the Zearosa
Commission focused on private armies.

Significantly, the PCGG Charter even specifies the persons to be investigated for the recovery of ill-gotten
wealth. Thus, Section 2(a) of the PCGG Charter provides:

Section 2. The Commission shall be charged with the task of assisting the President in regard to the following
matters:

(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue advantage
of their public office and/or using their powers, authority, influence, connections or relationship.

(b) x x x . (Emphasis supplied)

The PCGG Charter has survived all constitutional attacks before this Court, including the claim that its Section
2(a) violates the equal protection clause. In Virata v. Sandiganbayan, 57 this Court categorically ruled that the
PCGG Charter "does not violate the equal protection clause and is not a bill of attainder or an ex post facto
law."58

This specific focus of fact-finding investigations is also true in the United States. Thus, the Roberts
Commission59focused on the Pearl Harbor attack, the Warren Commission 60 focused on the assassination of
President John F. Kennedy, and the 9/11 Commission61 focused on the 11 September 2001 terrorist attacks on
the United States. These fact-finding commissions were created with specific focus to assist the U.S. President
and Congress in crafting executive and legislative responses to specific acts or events of grave national
importance. Clearly, fact-finding investigations by their very nature must have a specific focus.

Graft and corruption cases before the Arroyo administration have already been investigated by the previous
administrations. President Corazon Aquino created the Presidential Commission on Good Government to
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recover the ill-gotten wealth of the Marcoses and their cronies.62 President Joseph Estrada created the Saguisag
Commission to investigate the Philippine Centennial projects of President Fidel Ramos. 63 The glaring acts of
corruption during the Estrada administration have already been investigated resulting in the conviction of
President Estrada for plunder. Thus, it stands to reason that the Truth Commission should give priority to the
alleged acts of graft and corruption during the Arroyo administration.

The majority opinion claims that EO 1 violates the equal protection clause because the Arroyo administration
belongs to a class of past administrations and the other past administrations are not included in the investigation
of the Truth Commission. Thus, the majority opinion states:

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a
class of past administrations. It is not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.

xxx

x x x The PTC [Philippine Truth Commission], to be true to its mandate of searching the truth, must not
exclude the other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down
for being unconstitutional.

xxx

x x x To exclude the earlier administrations in the guise of "substantial distinctions" would only confirm
the petitioners' lament that the subject executive order is only an "adventure in partisan hostility." x x x.

xxx

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number included within a class, but must be
of such a nature as to embrace all those who may hereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and
which are indistinguishable from those of the members of the class must be brought under the influence of the
law and treated by it in the same way as are the members of the class." (Emphasis supplied)

The majority opinion goes on to suggest that EO 1 could be amended "to include the earlier past
administrations" to allow it "to pass the test of reasonableness and not be an affront to the Constitution."

The majority opinions reasoning is specious, illogical, impractical, impossible to comply, and contrary to the
Constitution and well-settled jurisprudence. To require that "earlier past administrations" must also be
included in the investigation of the Truth Commission, with the Truth Commission expressly empowered "to
investigate all past administrations," before there can be a valid investigation of the Arroyo administration
under the equal protection clause, is to prevent absolutely the investigation of the Arroyo administration under
any circumstance.

While the majority opinion admits that there can be "reasonable prioritization" of past administrations to be
investigated, it not only fails to explain how such reasonable prioritization can be made, it also proceeds to
strike down EO 1 for prioritizing the Arroyo administration in the investigation of the Truth Commission. And
175
while admitting that there can be a valid classification based on substantial distinctions, the majority opinion
inexplicably makes any substantial distinction immaterial by stating that "[t]o exclude the earlier
administrations in the guise of "substantial distinctions" would only confirm the petitioners' lament that
the subject executive order is only an 'adventure in partisan hostility.'"

The "earlier past administrations" prior to the Arroyo administration cover the Presidencies of Emilio
Aguinaldo, Manuel Quezon, Jose Laurel, Sergio Osmea, Manuel Roxas, Elpidio Quirino, Ramon Magsaysay,
Carlos Garcia, Diosdado Macapagal, Ferdinand Marcos, Corazon Aquino, Fidel Ramos, and Joseph Estrada, a
period spanning 102 years or more than a century. All these administrations, plus the 9-year Arroyo
administration, already constitute the universe of all past administrations, covering a total period of 111 years.
All these "earlier past administrations" cannot constitute just one class of administrations because if they
were to constitute just one class, then there would be no other class of administrations. It is like saying that
since all citizens are human beings, then all citizens belong to just one class and you cannot classify them as
disabled, impoverished, marginalized, illiterate, peasants, farmers, minors, adults or seniors.

Classifying the "earlier past administrations" in the last 111 years as just one class is not germane to the
purpose of investigating possible acts of graft and corruption. There are prescriptive periods to prosecute
crimes. There are administrations that have already been investigated by their successor administrations. There
are also administrations that have been subjected to several Congressional investigations for alleged large-scale
anomalies. There are past Presidents, and the officials in their administrations, who are all dead. There are past
Presidents who are dead but some of the officials in their administrations are still alive. Thus, all the "earlier
past administrations" cannot be classified as just one single class "a class of past administrations"
because they are not all similarly situated.

On the other hand, just because the Presidents and officials of "earlier past administrations" are now all dead,
or the prescriptive periods under the penal laws have all prescribed, does not mean that there can no longer be
any investigation of these officials. The State's right to recover the ill-gotten wealth of these officials
is imprescriptible.64 Section 15, Article XI of the 1987 Constitution provides:

Section 15. 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, laches or estoppel.
(Emphasis supplied)

Legally and morally, any ill-gotten wealth since the Presidency of Gen. Emilio Aguinaldo can still be recovered
by the State. Thus, if the Truth Commission is required to investigate "earlier past administrations" that
could still be legally investigated, the Truth Commission may have to start with the Presidency of Gen.
Emilio Aguinaldo.

A fact-finding investigation of "earlier past administrations," spanning 111 years punctuated by two world
wars, a war for independence, and several rebellions would obviously be an impossible task to undertake for
an ad hoc body like the Truth Commission. To insist that "earlier past administrations" must also be
investigated by the Truth Commission, together with the Arroyo administration, is utterly bereft of any
reasonable basis other than to prevent absolutely the investigation of the Arroyo administration. No nation on
this planet has even attempted to assign to one ad-hoc fact-finding body the investigation of all its senior public
officials in the past 100 years.

The majority opinions overriding thesis that "earlier past administrations" belong to only one class and
they must all be included in the investigation of the Truth Commission, with the Truth Commission expressly
empowered "to investigate all past administrations" is even the wrong assertion of discrimination that is
violative of the equal protection clause. The logical and correct assertion of a violation of the equal protection

176
clause is that the Arroyo administration is being investigated for possible acts of graft and corruption while
other past administrations similarly situated were not.

Thus, in the leading case of United States v. Armstrong,65 decided in 1996, the U.S. Supreme Court ruled that
"to establish a discrimination effect in a race case, the claimant must show that similarly situated individuals of
a different race were not prosecuted."66 Applied to the present petitions, petitioners must establish that similarly
situated officials of other past administrations were not investigated. However, the incontrovertible and glaring
fact is that the Marcoses and their cronies were investigated and prosecuted by the PCGG, President Fidel
Ramos and his officials in the Centennial projects were investigated by the Saguisag Commission, and President
Joseph Estrada was investigated, prosecuted and convicted of plunder under the Arroyo administration.
Indisputably, the Arroyo administration is not being singled out for investigation or prosecution because other
past administrations and their officials were also investigated or prosecuted.

In United States v. Armstrong, the U.S. Supreme Court further stated that "[a] selective-prosecution claim asks
a court to exercise judicial power over a "special province" of the Executive,"67 citing Hecker v.
Chaney68 which held that a decision whether or not to indict "has long been regarded

as the special province of the Executive Branch, inasmuch it is the Executive who is charged by the
Constitution to take Care that the Laws be faithfully executed."69 These U.S. cases already involved the
prosecution of cases before the grand jury or the courts, well past the administrative fact-finding investigative
phase.

In the present case, no one has been charged before the prosecutor or the courts. What petitioners want this
Court to do is invalidate a mere administrative fact-finding investigation by the Executive branch, an
investigative phase prior to preliminary investigation. Clearly, if courts cannot exercise the Executives "special
province" to decide whether or not to indict, which is the equivalent of determination of probable cause, with
greater reason courts cannot exercise the Executives "special province" to decide what or what not to
investigate for administrative fact-finding purposes.

For this Court to exercise this "special province" of the President is to encroach on the exclusive domain of the
Executive to execute the law in blatant violation of the finely crafted constitutional separation of power. Any
unwarranted intrusion by this Court into the exclusive domain of the Executive or Legislative branch disrupts
the separation of power among the three co-equal branches and ultimately invites re-balancing measures from
the Executive or Legislative branch.

A claim of selective prosecution that violates the equal protection clause can be raised only by the party
adversely affected by the discriminatory act. In Nunez v. Sandiganbayan, 70 this Court declared:

x x x Those adversely affected may under the circumstances invoke the equal protection clause only if they can
show that the governmental act assailed, far from being inspired by the attainment of the common weal was
prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. x x x.
(Emphasis supplied)

Here, petitioners do not claim to be adversely affected by the alleged selective prosecution under EO 1. Even in
the absence of such a claim by the proper party, the majority opinion strikes down EO 1 as discriminatory and
thus violative of the equal protection clause. This is a gratuitous act to those who are not before this Court, a
discriminatory exception to the rule that only those "adversely affected" by an alleged selective prosecution can
invoke the equal protection clause. Ironically, such discriminatory exception is a violation of the equal
protection clause. In short, the ruling of the majority is in itself a violation of the equal protection clause, the
very constitutional guarantee that it seeks to enforce.

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The majority opinions requirement that "earlier past administrations" in the last 111 years should be
included in the investigation of the Truth Commission to comply with the equal protection clause is a recipe for
all criminals to escape prosecution. This requirement is like saying that before a person can be charged with
estafa, the prosecution must also charge all persons who in the past may have committed estafa in the country.
Since it is impossible for the prosecution to charge all those who in the past may have committed estafa in the
country, then it becomes impossible to prosecute anyone for estafa.

This Court has categorically rejected this specious reasoning and false invocation of the equal protection clause
in People v. dela Piedra,71 where the Court emphatically ruled:

The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws. x x x

x x x The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a
Zamboanguea, the guilty party in appellants eyes, was not, is insufficient to support a conclusion that the
prosecution officers denied appellant equal protection of the laws.

There is also common sense practicality in sustaining appellants prosecution.

While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that
they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a
defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement
of the law in such instances does not lie in the exoneration of the guilty at the expense of society . . . . Protection
of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has
the right to demand protection of the law in the commission of a crime. (People v. Montgomery, 117 P.2d 437
[1941])

Likewise,

[i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense
for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would
become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would
suffer a complete breakdown (State v. Hicks, 325 P.2d 794 [1958]).72 (Emphasis supplied)

The Court has reiterated this "common sense" ruling in People v. Dumlao73 and in Santos v. People,74 for to
hold otherwise is utter nonsense as it means effectively granting immunity to all criminals.

Indeed, it is a basic statutory principle that non-observance of a law by disuse is not a ground to escape
prosecution for violation of a law. Article 7 of Civil Code expressly provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.

x x x. (Emphasis supplied)

A person investigated or prosecuted for a possible crime cannot raise the defense that he is being singled out
because others who may have committed the same crime are not being investigated or prosecuted. Such person
cannot even raise the defense that after several decades he is the first and only one being investigated or
prosecuted for a specific crime. The law expressly states that disuse of a law, or custom or practice allowing
violation of a law, will never justify the violation of the law or its non-observance.

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A fact-finding investigation in the Executive or Judicial branch, even if limited to specific government officials
whether incumbent, resigned or retired does not violate the equal protection clause. If an anomaly is
reported in a government transaction and a fact-finding investigation is conducted, the investigation by
necessity must focus on the public officials involved in the transaction. It is ridiculous for anyone to ask this
Court to stop the investigation of such public officials on the ground that past public officials of the same rank,
who may have been involved in similar anomalous transactions in the past, are not being investigated by the
same fact-finding body. To uphold such a laughable claim is to grant immunity to all criminals, throwing out of
the window the constitutional principle that "[p]ublic office is a public trust"75 and that "[p]ublic officials and
employees must at all times be accountable to the people."76

When the Constitution states that public officials are "at all times" accountable to the people, it means at any
time public officials can be held to account by the people. Nonsensical claims, like the selective prosecution
invoked in People v. dela Piedra, are unavailing. Impossible conditions, like requiring the investigation of
"earlier past administrations," are disallowed. All these flimsy and dilatory excuses violate the clear
command of the Constitution that public officials are accountable to the people "at all times."

The majority opinion will also mean that the PCGG Charter which tasked the PCGG to recover the ill-gotten
wealth of the Marcoses and their cronies violates the equal protection clause because the PCCG Charter
specifically mentions the Marcoses and their cronies. The majority opinion reverses several decisions 77 of this
Court upholding the constitutionality of the PCCG Charter, endangering over two decades of hard work in
recovering ill-gotten wealth.

Ominously, the majority opinion provides from hereon every administration a cloak of immunity against any
investigation by its successor administration. This will institutionalize impunity in transgressing anti-corruption
and other penal laws. Sadly, the majority opinion makes it impossible to bring good governance to our
government.

The Truth Commission is only a fact-finding body to provide the President with facts so that he can understand
what happened in certain government transactions during the previous administration. There is no preliminary
investigation yet and the Truth Commission will never conduct one. No one is even being charged before the
prosecutor or the Ombudsman. This Court has consistently refused to interfere in the determination by the
prosecutor of the existence of probable cause in a preliminary investigation. 78 With more reason should this
Court refuse to interfere in the purely fact-finding work of the Truth Commission, which will not even
determine whether there is probable cause to charge any person of a crime.

Before the President executes the law, he has the right, and even the duty, to know the facts to assure himself
and the public that he is correctly executing the law. This Court has no power to prevent the President from
knowing the facts to understand certain government transactions in the Executive branch, transactions that may
need to be reviewed, revived, corrected, terminated or completed. If this Court can do so, then it can also
prevent the House of Representatives or the Senate from conducting an investigation, in aid of legislation, on
the financial transactions of the Arroyo administration, on the ground of violation of the equal protection clause.
Unless, of course, the House or the Senate attempts to do the impossible conduct an investigation on the
financial transactions of earlier past administrations" since the Presidency of General Emilio Aguinaldo.
Indeed, under the majority opinion, neither the House nor the Senate can conduct any investigation on any
administration, past or present, if "earlier past administrations" are not included in the legislative investigation.

In short, the majority opinions requirements that EO 1 should also include "earlier past administrations," with
the Truth Commission empowered "to investigate all past administrations," to comply with the equal
protection clause, is a requirement that is not only illogical and impossible to comply, it also allows the
impunity to commit graft and corruption and other crimes under our penal laws. The majority opinion

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completely ignores the constitutional principle that public office is a public trust and that public officials are at
all times accountable to the people.

A Final Word

The incumbent President was overwhelmingly elected by the Filipino people in the 10 May 2010 elections
based on his announced program of eliminating graft and corruption in government. As the Solicitor General
explains it, the incumbent President has pledged to the electorate that the elimination of graft and corruption
will start with the investigation and prosecution of those who may have committed large-scale corruption in the
previous administration.79 During the election campaign, the incumbent President identified graft and corruption
as the major cause of poverty in the country as depicted in his campaign theme "kung walang corrupt, walang
mahirap." It was largely on this campaign pledge to eliminate graft and corruption in government that the
electorate overwhelmingly voted for the incumbent President. The Filipino people do not want to remain
forever at the bottom third of 178 countries ranked in terms of governments free from the scourge of
corruption.80

Neither the Constitution nor any existing law prevents the incumbent President from redeeming his campaign
pledge to the Filipino people. In fact, the incumbent Presidents campaign pledge is merely a reiteration of the
basic State policy, enshrined in Section 27, Article II of the Constitution, that:

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption. (Emphasis supplied)

The incumbent Presidents campaign pledge also reiterates the constitutional principle that "[p]ublic office is a
public trust"81 and that "[p]ublic officers and employees must at all times be accountable to the people." 82

This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will of the Filipino
people to start the difficult task of putting an end to graft and corruption in government, denies the President his
basic constitutional power to determine the facts in his faithful execution of the law, and suppresses whatever
truth may come out in the purely fact-finding investigation of the Truth Commission. This Court, in invoking
the equal protection clause to strike down a purely fact-finding investigation, grants immunity to those who
violate anti-corruption laws and other penal laws, renders meaningless the constitutional principle that public
office is a public trust, and makes public officials unaccountable to the people at any time.

Ironically, this Court, and even subordinates of the President in the Executive branch, routinely create all year
round fact-finding bodies to investigate all kinds of complaints against officials and employees in the Judiciary
or the Executive branch, as the case may be. The previous President created through executive issuances three
purely fact-finding commissions similar to the Truth Commission. Yet the incumbent President, the only
official mandated by the Constitution to execute faithfully the law, is now denied by this Court the power to
create the purely fact-finding Truth Commission.

History will record the ruling today of the Courts majority as a severe case of judicial overreach that made the
incumbent President a diminished Executive in an affront to a co-equal branch of government, crippled our
already challenged justice system, and crushed the hopes of the long suffering Filipino people for an end to
graft and corruption in government.

Accordingly, I vote to DISMISS the petitions.

DISSENTING OPINION

CARPIO MORALES, J.:

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Assailed for being unconstitutional in the present consolidated cases is Executive Order (EO) No. 1 of July 30,
2010 that created the Philippine Truth Commission of 2010 (Truth Commission).

In issue is whether EO No. 1 violates the Constitution in three ways, viz., (i) for usurping the power of Congress
to create public office and appropriate public funds, (ii) for intruding into the independence of the Office of the
Ombudsman, and (iii) for infringing on the equal protection clause with its limited scope of investigation.

The ponencia submits the following findings and conclusions which have been synthesized:

1. The Truth Commission is an ad hoc body formed under the Office of the President.1avvph!1 It has all
the powers of an investigative body under the Administrative Code.1 It is a fact-finding body, and not a
quasi-judicial body;

2. The President has the power to create a new office like the Truth Commission. The power inheres in
his powers as Chief Executive and springs from the constitutional duty to faithfully execute the
laws.2Otherwise stated, the President has the power to conduct investigations to aid him in ensuring that
laws are faithfully executed. It does not emanate from the Presidents power of control under the
Constitution,3 nor by virtue of the power to reorganize under the Administrative Code 4 which pertains to
certain modifications of existing offices, nor by authority of a stale law5 governing reorganization of the
national government;

3. There is no transgression of the legislative power to appropriate public funds since what is involved is
only an allotment or allocation of existing funds that have already been appropriated and which shall
equally be subject to auditing rules;

4. The Truth Commission does not duplicate, supersede or erode the powers and functions of the Office
of the Ombudsman and the Department of Justice, since its investigative function complements the two
offices investigative power which is not exclusive. This investigative function is not akin to the conduct
of preliminary investigation of certain cases, over which the Ombudsman exercises primary jurisdiction;
and

5. EO No. 1 violates the equal protection clause enshrined in the Constitution,6 for it singles out the
previous administration as the sole subject of investigation.

Sustaining only the fifth ground that the EO violates the equal protection clause, the ponencia disposes:

WHEREFORE, the petition is (sic) GRANTED. Executive Order No. 1 is hereby

declared UNCONSTITUTIONALinsofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are enjoined from implementing (sic) and operating the Truth
Commission.7(underscoring supplied)

I submit that the petitions should be DISMISSED.

It bears noting at the outset that none of the petitioners properly raises the issue of equal protection of the laws.

Petitioners in G.R. No. 193036, with legal standing as legislators, cannot properly assert the equal
protection claim of the previous administration. While legislators have locus standi in certain cases, their
legal standing as such is recognized only insofar as the assailed issuance affects their functions as legislators. In
the absence of a claim that the issuance in question violated the rights of petitioner-legislators or impermissibly

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intruded into the domain of the Legislature, they have no legal standing to institute the present action in their
capacity as members of Congress.8

No doubt, legislators are allowed to sue to question the validity of any official action upon a claim of usurpation
of legislative power.9 That is why, not every time that a Senator or a Representative invokes the power of
judicial review, the Court automatically clothes them with locus standi.10 The Court examines first, as
the ponencia did, if the petitioner raises an issue pertaining to an injury to Congress as an institution or a
derivative injury to members thereof,11 before proceeding to resolve that particular issue.

The peculiarity of the locus standi of legislators necessarily confines the adjudication of their petition only on
matters that tend to impair the exercise of their official functions. In one case, the Court ruled:

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The
other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the
country. They have not shown, however, that they have sustained or will sustain a direct injury from the non-
transmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of
their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is
intended to complement national criminal laws and courts. Sufficient remedies are available under our national
laws to protect our citizens against human rights violations and petitioners can always seek redress for any
abuse in our domestic courts.

As regards Senator Pimentel, it has been held that 'to the extent the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to participate in the exercise of the powers of that
institution. Thus, legislators have the standing to maintain inviolate the prerogatives, 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. The petition at bar invokes the power of
the Senate to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the
Rome Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to
allow it to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal
standingto assert such authority of the Senate.12 (emphasis and underscoring supplied)

Breach of the equal protection clause, as presently raised by petitioner-legislators on behalf of the Executive
Department of the immediate past administration, has nothing to do with the impairment of the powers of
Congress. Thus, with respect to the issue in Pimentel, Jr. v. Exec. Secretary Ermita13 that did not involve any
impairment of the prerogatives of Congress, some Senators who merely invoked their status as legislators were
not granted standing.

Moreover, petitioner-legislators cannot take the cudgels for the previous administration/s, unless they admit that
they are maintaining a confidential relation with it/them or acting as advocates of the rights of a non-party who
seeks access to their market or function.14

The petitioner in G.R. No. 192935, Louis Biraogo, does not raise the issue of equal protection. His
Memorandum mentions nothing about equal protection clause. 15 While the ponencia "finds reason in Biraogos
assertion that the petition covers matters of transcendental importance,"16 not even his successful invocation of
transcendental importance can push the Court into resolving an issue which he never raised in his petition.

On the foregoing score alone, the ponencia should not have dealt with the issue of equal protection.17

Such barriers notwithstanding, the claim of breach of the equal protection clause fails to hurdle the higher
barrier of merit.

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EQUAL PROTECTION OF THE LAWS

The ponencia holds that the previous administration has been denied equal protection of the laws. To it, "[t]o
restrict the scope of the commissions investigation to said particular administration constitutes arbitrariness
which the equal protection clause cannot sanction."18

I find nothing arbitrary or unreasonable in the Truth Commissions defined scope of investigation.

In issues involving the equal protection clause, the test developed by jurisprudence is that of reasonableness,
which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the

purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of
the same class.19

The classification rests on

substantial distinction

Reasonableness should consider the nature of the truth commission which, as found by the ponencia, emanates
from the power of the President to conduct investigations to aid him in ensuring the faithful execution of laws.
The ponencia explains that the Executive Department is given much leeway in ensuring that our laws are
faithfully executed. It adds:

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into
matters which the President is entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to
be revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission, and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to declare such executive power as non-existent
just because the direction of the political winds ha[s] changed. 20 (underscoring supplied)

This Court could not, in any way, determine or dictate what information the President would be needing
in fulfilling the duty to ensure the faithful execution of laws on public accountability. This sweeping
directive of the ponencia to include all past administrations in the probe tramples upon the prerogative of a co-
equal branch of government.

The group or class, from which to elicit the needed information, rests on substantial distinction that sets the
class apart.

Proximity and magnitude of incidents

Fairly recent events like the exigencies of transition and the reported large-scale corruption explain the
determined need to focus on no other period but the tenure of the previous administration.

The proximity and magnitude of particular contemporary events like the Oakwood mutiny and Maguindanao
massacre similarly justified the defined scope of the Feliciano Commission and the Zenarosa Commission,
respectively. As applied to the two commissions whose objective the ponencia itself recognizes, the same test of
reasonableness rejects the absurd proposition to widen their respective scopes to include all incidents of
rebellion/mutiny and election-related violence since the First Republic. Certainly, it is far removed not just from
the present time but also from logic and experience.

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This explained need for specific information removes the arbitrariness from recognizing the previous
administration as a distinct class of its own.

Without a complete and definitive report

The ponencia brushes aside the proffered reasons for limiting the investigation to the previous administration
since "earlier administrations have also been blemished by similar widespread reports of impropriety." 21

The ponencia employs the premise that previous administrations have all been blemished by reports of
improprieties similar22 to those of the previous administration. Whether reports of such nature exist is not borne
by the pleadings submitted by petitioners who allege unequal protection. Without any factual basis, the
statement is inconclusive and, at best, arguable.

Assuming arguendo that comparable reports of large-scale graft and corruption existed during administrations
previous to the last, petitioners do not allege that information regarding these reported activities is not yet
available in the Executive Department. On the contrary, respondents disclose that the Presidential Commission
on Good Government and the Saguisag Commission have already probed into certain anomalous transactions
that occurred during the Marcos and Ramos administrations, respectively. During past administrations, parallel
functions had been discharged by the Integrity Board, Presidential Complaints and Action Commission
(PCAC), Presidential Committee on Administrative Performance Efficiency (PCAPE), and Presidential Anti-
Graft Committee (PAGCOM, later replaced by the Presidential Committee on Administering Performance
Efficiency), that were created by former Presidents Quirino, Magsaysay, Garcia and Macapagal,
respectively.23 Not to mention the plunder committed during the Estrada administration, the facts of which
already judicially ascertained, at that are contained in public records.

The Executive Departments determination of the futility or redundancy of investigating other administrations
should be accorded respect. Respondents having manifested that pertinent and credible data are already in their
hands or in the archives, petitioners idea of an all-encompassing de novo inquiry becomes tenuous as it goes
beyond what the Executive Department needs.

The exclusion of other past administrations from the scope of investigation by the Truth Commission is justified
by the substantial distinction that complete and definitive reports covering their respective periods have already
been rendered. The same is not true with the immediate past administration. There is thus no undue favor or
unwarranted partiality. To include everybody all over again is to insist on a useless act.

The distinction is not discriminatory

I find it contradictory for the ponencia to state, on the one hand, that the Truth Commission would be labeled as
a "vehicle for vindictiveness and selective retribution"24 and declare, on the other, that "its power to investigate
is limited to obtaining facts x x x and its findings "would at best be recommendatory in nature[,] [a]nd x x x [the
concerned agencies] have a wide degree of latitude to decide whether or not to reject the recommendation." 25

After precisely explaining that "fact-finding is not adjudication,"26 the ponencia relates it to retribution which it
depicts, in the context of truth commissions, as a "retributory body set up to try and punish those responsible for
the crimes."27 The ponencia jumps into conclusion but lands nowhere for it has no ground on which to stand.

Further, the Court should not concern itself with the nebulous concept of "partisan hostility," a relatively
redundant term that eludes exact definition in a political world of turncoatism. Had the assailed issuance
provided exemption to former members of the previous administration who have joined the prevailing political
party, I would not hesitate to declare EO No. 1 void.

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Far from being discriminatory, E.O No. 1 permits the probing of current administration officials who may have
had a hand in the reported graft and corruption committed during the previous administration, regardless of
party affiliation. The classification notably rests not on personalities but on period, as shown by the repeated use
of the phrase "during the previous administration."28

The ponencia treats adventures in "partisan hostility" as a form of undue discrimination. Without defining what
it is, the ponencia gives life to a political creature and transforms it into a legal animal. By giving legal
significance to a mere say-so of "partisan hostility," it becomes unimaginable how the Court will refuse to apply
this novel doctrine in the countless concerns of the inherently political branches of government under an
invocation of equal protection. And to think, the present matter only involves the gathering of information.

To knowingly classify per se is not synonymous to intentional discrimination, which brings me to the next point
that the classification is germane to the purpose of the law.

The classification is germane

to the purpose of the law

I entertain no doubt that respondents consciously and deliberately decided to focus on the corrupt activities
reportedly committed during the previous administration. For respondents to admit that the selection was
inadvertent is worse. The ponencia, however, is quick to ascribe intentional discrimination from the mere fact
that the classification was intentional.

Good faith is presumed. I find it incomprehensible how the ponencia overturns that presumption. Citing an
array of foreign jurisprudence, the ponencia, in fact, recognizes that mere under-inclusiveness or
incompleteness is not fatal to the validity of a law under the equal protection clause. Thus the ponencia
pontificates:

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal
protection clause." "Legislation is not unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach." It has been written that a regulation challenged under the equal protection
clause is not devoid of a rational predicate simply because it happens to be incomplete. In several instances, the
underinclusiveness was not considered valid reason to strike down a law or regulation where the purpose can be
attained in future legislations or regulations. These cases refer to the "step by step" process. "With regard to
equal protection claims, a legislature does not run the risk of losing the entire remedial scheme simply because
it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked."

In Executive Order No. 1, however, there is no clear indicia of inadvertence. That the previous administration
was picked out was deliberate and intentional as can be gathered from the fact that it was stressed three times in
the assailed executive order. "The equal protection clause is voided by purposeful and intentional
discrimination."29(emphasis and underscoring supplied)

According to the ponencia itself, the E.O.s failure to include all evils within its reach, even by design, is not
vulnerable to an equal protection challenge. How the ponencia arrives at a contrary conclusion puzzles.

Within our own jurisprudential shores, the Court expounded in Quinto v. Comelec 30 on those classifications
which, albeit not all-inclusive, remain germane to the purpose of the law.

Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the
Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time." In
addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as
to those included or excluded. Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the
185
courts must defer to the legislative judgment. We may not strike down a law merely because the legislative aim
would have been more fully achieved by expanding the class. Stated differently, the fact that a legislative
classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. There is no
constitutional requirement that regulation must reach each and every class to which it might be applied; that the
Legislature must be held rigidly to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a
classification that is "palpably arbitrary or capricious." He must refute all possible rational bases for the
differing treatment, whether or not the Legislature cited those bases as reasons for the enactment, such that the
constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly
debatable." In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy
burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the
following thesis:

. . . [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there
is no reasonably rational reason for the differing treatment. (underscoring supplied)

The "one step at a time" approach is thus not unconstitutional. E.O. No. 1 is not the first, but the latest, step in a
series of initiatives undertaken by Presidents, as earlier illustrated. Neither will it be the last step. E.O. No. 1
contains a special provision31 concerning the expansion of mandate. There being no constitutional violation in a
step-by-step approach, the present and future administrations may release supplementary or comparable
issuances.

The wisdom behind the issuance of the E.O. No. 1 is "outside the rubric of judicial scrutiny." 32 Analogous
to Quintos instructions, this Court cannot and should not arrogate unto itself the power to ascertain and impose
on the President the best or complete way of obtaining information to eradicate corruption. Policy choices on
the practicality or desirability of data-gathering that is responsive to the needs of the Executive Department in
discharging the duty to faithfully execute the laws are best left to the sound discretion of the President.

Most enlightening as to how the classification is germane to the purpose of the law is knowing first what is the
purpose of the law.

According to the ponencia, the objective of E.O. No. 1 is the "stamping out [of] acts of graft and corruption."33

I differ.

The purpose of E.O. No. 1 is the gathering of needed information to aid the President in the implementation of
public accountability laws. Briefly stated, E.O. No. 1 aims to provide data for the President.

The ponencia, in fact, has earlier explained: "It should be stressed that the purpose of allowing ad
hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so
that he can be properly advised and guided in the performance of his duties relative to the execution and
enforcement of the laws of the land."34

The long-term goal of the present administration must not be confused with what E.O. No. 1 intends to achieve
within its short life. The opening clauses and provisions of E.O No. 1 are replete with phrases like "an urgent

call for the determination of the truth," "dedicated solely to investigating and finding out the truth," and
"primarily seek and find the truth."

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The purpose of E.O. No. 1 is to produce a report which, insofar as the Truth Commission is concerned, is the
end in itself. The purpose of the report is another matter which is already outside the control of E.O. No. 1.

Once the report containing the needed information is completed, the Truth Commission is dissolved functus
officio. At that point, the endeavor of data-gathering is accomplished, and E.O No. 1 has served its purpose. It
cannot be said, however, that it already eradicated graft and corruption. The report would still be passed upon
by government agencies. Insofar as the Executive Department is concerned, the report assimilates into a broader
database that advises and guides the President in law enforcement.

To state that the purpose of E.O. No. 1 is to stamp out acts of graft and corruption leads to the fallacious and
artificial conclusion that respondents are stamping out corrupt acts of the previous administration only, as if
E.O. No. 1 represents the entire anti-corruption efforts of the Executive Department.

To state that the purpose of E.O. No. 1 is to eradicate graft and corruption begs the question. What is there to
eradicate in the first place, if claims of graft and corruption are yet to be verified by the Truth Commission?
Precisely, by issuing E.O. No. 1, respondents saw the need to verify raw data before initiating the law
enforcement mechanism, if warranted.

The classification is not limited

to existing conditions only

The Truth Commission is an ad hoc body formed under the Office of the President. The nature of an ad
hoc body is that it is limited in scope. Ad hoc means for the particular end or case at hand without consideration
of wider application.35 An ad hoc body is inherently temporary. E.O. No. 1 provides that the Truth Commission
"shall accomplish its mission on or before December 31, 2012."36

That the classification should not be limited to existing conditions only, as applied in the present case, does not
mean the inclusion of future administrations. Laws that are limited in duration (e.g., general appropriations act)
do not circumvent the guarantee of equal protection by not embracing all that may, in the years to come, be in
similar conditions even beyond the effectivity of the law.

The requirement not to limit the classification to existing conditions goes into the operational details of the law.
The law cannot, in fine print, enumerate extant items that exclusively compose the classification, thereby
excluding soon-to-exist ones that may also fall under the classification.

In the present case, the circumstance of available reports of large-scale anomalies that fall under the
classification (i.e., committed during the previous administration) makes one an "existing condition." Those not
yet reported or unearthed but likewise fall under the same class must not be excluded from the application of the
law. There is no such exclusionary clause in E.O. No. 1.

The ratiocination on this third requisite so as to include previous administrations already goes into the
"classifications," not the "conditions." The ponencia rewrites the rule leading to the absurd requirement that the
classification should not be limited to the existing "classification" only.

The classification applies equally

to all members of the same class

Petitioners concede, by their failure to allege otherwise, that the classification applies equally to all
members within the same class (i.e., all reports of large-scale graft and corruption during the previous
administration). By this implied admission, this fourth requirement meets no objection.

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Petitioners only insistent contention, as sustained by the ponencia, is that all prior administrations belong to the
same class, citing that equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. 37

Petitioners do not espouse the view that no one should be investigated. What they advocate is that all
administrations should be investigated or, more accurately, all reports of large-scale graft and corruption during
the tenure of past administrations should be subjected to investigation.

Discrimination presupposes prejudice. I find none.

First, no one complains of injury or prejudice. Petitioners do not seek the lifting of their own obligations or the
granting of their own rights that E.O. No. 1 imposes or disallows. As earlier expounded, petitioner-legislators
cannot plausibly invoke the equal protection claims of other persons, while petitioner Biraogo did not invoke it
at all.

Second, petitioners do not allege that previous administrations, other than the immediate past administration,
have been denied the right to appear before or be examined by the Truth Commission. Neither do petitioners
identify the specific fact-finding obligations exclusively imposed upon the immediate past administration by the
Truth Commission whose primary duty is merely to "investigate reports of graft and corruption and
to recommend the appropriate action."38

Third, assuming that there already exists an imposition of obligation from the mere recommendation for
prosecution (as one of the possible appropriate measures) by the Truth Commission, the act of not
recommending the prosecution of all those who could be probably guilty of graft and corruption is not violative
of the equal protection clause. Even in the succeeding stage of preliminary investigation, which is already "out
of the Truth Commissions sphere of functions,"39 jurisprudence instructs that the right to equal protection of
the laws "may not be perversely used to justify desistance by the authorities from prosecution of a criminal case,
just because not all of those who are probably guilty thereof were charged."40

Verily, where there is claim of breach of the due process and equal protection clauses, considering that they
are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would
lead to such a conclusion. Absent such a showing, the presumption of validity must prevail. 41

Finally, even assuming arguendo that all prior administrations should be included within the scope of
investigation of the Truth Commission, E.O. No 1 is saved by a separability clause, 42 considering that the
remaining portions can stand independently of the assailed portions and constitute a complete, intelligible and
valid law which carries out the intent of the law. 43 There is thus no basis for denying the other provisions of
their continued force and enjoining the operation of the Truth Commission.

I, therefore, submit that there exists a "reasonable foundation or rational basis" 44 for defining the subject of the
special fact-finding investigation by the Truth Commission.

For the foregoing reasons, I vote to DISMISS the petitions.

DISSENTING OPINION

Sir, I say that justice is truth in action.

Benjamin Disraeli, in a speech delivered before the British House of Commons, February 11, 1851

SERENO, J:
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The majority Decision defeats the constitutional mandate on public accountability; it effectively tolerates
impunity for graft and corruption. Its invocation of the constitutional clause on equal protection of the laws is an
unwarranted misuse of the same and is a disservice to those classes of people for whom the constitutional
guarantee was created as a succor. The majority Decision accomplished this by completely disregarding
"reasonableness" and all its jurisprudential history as constitutional justification for classification and by
replacing the analytical test of reasonableness with mere recitations of general case doctrines to arrive at its
forced conclusion. By denying the right of the President to classify persons in Executive Order No. (EO) 1 even
if the classification is founded on reason, the Decision has impermissibly infringed on the constitutional powers
of the President. It wafts the smell of hope onto the air towards those who seek the affirmance of EO 1 by
saying:

... [T]his is not a death knell for a truth commission as nobly envisioned by the present administration. Perhaps
a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the
test of reasonableness and not be an affront to the Constitution... 1

but the scent of hope, as will be demonstrated, is that which emanates from a red herring. Since Ferdinand
Marcoss presidency, no Court has stifled the powers of the Philippine presidency as has this Court through the
majority Decision.

The Concurring Opinion of Justice Arturo Brion reveals one undercurrent beneath the majoritys logically
indefensible conclusion that flows thusly: (1) the Filipino people cannot be trusted to recognize truth from
untruth; (2) because the people cannot make the distinction, there exists a large possibility that the people would
accept as truth the Philippine Truth Commission (PTC) version of the story on reports of graft and corruption
under the administration of President Gloria Macapagal-Arroyo even if it turns out to be untruth; (3) this
potential public belief in the untruth also enables the credulous publics inordinate pressure on the Ombudsman
and the courts to concur in the untruth; (4) because of the possibility of this inordinate pressure being brought to
bear, the probability that the Ombudsman and the courts would give in to such pressure exists; (5) thus the
formula emerges the public clamor supportive of the untruth plus the Ombudsman and the courts possibly
giving way to this clamor equals violation of the due process rights of former President Arroyo and her
officials; in turn, this sum equals striking down the Philippine Truth Commission for being unconstitutional.

The separate opinions of Chief Justice Renato Corona and Justices Teresita de Castro, Lucas Bersamin, and
Jose Perez hold an extreme view on EO 1, opposing well-established jurisprudence which categorically
pronounce that the investigatory powers of the Ombudsman may be concurrently exercised with other legally
authorized bodies. Chief Justice Corona and Justices de Castro, Diosdado Peralta, and Bersamin even go further
in saying that it would take congressional action, by means of legislation, to create a truth commission with the
same mandate as that in EO 1; and even if Congress itself were to create such commission, it would still be
struck down for violating the equal protection right of former President Arroyo.

Justice Antonio Carpio opines that the effect of the majority Decision is the absolute prevention of the
investigation of the Arroyo administration.2 I agree with his assessment, especially considering the further
views on the matter expressed separately by Chief Justice Corona and Justices de Castro, Brion, Peralta,
Bersamin, and Perez. In my view, the Decision and the separate concurring opinions manifest the "backlash
effect" wherein movements to achieve social justice and a more equitable distribution of powers are met with
opposition from the dominant group. When the people start demanding accountability, in response to which
truth commissions and other fact-finding bodies are established, those from the previously ruling elite, who
retain some hold on power, lash back at the effort by crying "persecution," "violation of due process" and
"violation of the equal protection guarantee." Some of the petitioners, according to Justice Conchita Carpio
Morales, are in essence acting for and in behalf of former President Arroyo and her officials, otherwise they
would not be invoking the "equal protection clause," a defense that is inherently personal to President Arroyo
and her officials. These petitioners are wielding the backlash whip through the Petitions. In bending over
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backwards to accommodate the Petitions, especially on equal protection claims which Petitioners could not
properly raise, this Court is wittingly or unwittingly compromising important constitutional principles and
rendering the path to a genuinely strong democratic Philippines more difficult. With all due respect, the
Decision in effect conveys the immoral lesson that what is all-important is to capture and retain political power
at all costs and misuse the legal infrastructure, including the Bill of Rights and the power of appointment, to
create a shield of immunity from prosecution of misdeeds.

Findings and Dispositive Conclusion of the Majority

The dispositive conclusion of the majority Decision contradicts its own understanding of both the Constitution
and the legal implication of recent political events. It finds that: (1) the Filipino people convinced in the
sincerity and ability of Benigno Simeon Aquino III to carry out the noble objective of stamping out graft and
corruption, "catapulted the good senator to the Presidency"3; (2) to transform his campaign slogan into reality,
"President Aquino found a need for a special body to investigate reported cases of graft and corruption allegedly
committed during the administration of his predecessor"4; (3) the Philippine Truth Commission (PTC) is an ad
hoc committee that flows from the Presidents constitutional duty to ensure that the laws are faithfully executed,
and thus it can conduct investigations under the authority of the President to determine whether the laws were
faithfully executed in the past and to recommend measures for the future to ensure that the laws will be
faithfully executed;5 (4) the PTC is constitutional as to its manner of creation and the scope of its powers; 6 (5)
that it is similar to valid investigative bodies like the PCAC, PCAPE, PARGO, the Feliciano Commission, the
Melo Commission and the Zearosa Commission.7 Nevertheless, the majority Decision concluded that the PTC
should be struck down as unconstitutional for violating the equal protection clause for the reason that the PTCs
clear mandate is to "investigate and find out the truth concerning the reported cases of graft and corruption
during the previous administration only."8

There is a disjoint between the premises and the conclusion of the Decision caused by its discard of the
elementary rules of logic and legal precedents. It suffers from internal contradiction, engages in semantic
smoke-and-mirrors and blatantly disregards what must be done in evaluating equal protection claims, i.e., a
judge must ask whether there was indeed a classification; the purpose of the law or executive action; whether
that purpose achieves a legitimate state objective; the reason for the classification; and the relationship between
the means and the end. Within those layers of analysis, the judge must compare the claimed reason for
classification with cases of like or unlike reasoning. He knows the real world, he looks at its limitations, he
applies his common sense, and the judge knows in his judicial heart whether the claimed reason makes sense or
not. And because he is a practical man, who believes as Justice Oliver Wendell Holmes did that the life of the
law is in experience, he knows false from genuine claims of unconstitutional discrimination.

With all due respect, it is bad enough that the Decision upsets the long line of precedents on equal protection
and displays self-contradiction. But the most unacceptable effect of the majority Decision is that a court of
unelected people which recognizes that the President "need(s) to create a special body to investigate reports of
graft and corruption allegedly committed during the previous administration" to "transform his campaign
promise" "to stamp out graft and corruption"9 proposes to supplant the will of the more than 15 million voters
who voted for President Aquino and the more than 80% of Filipinos who now trust him, by imposing
unreasonable restrictions on and impossible, unknowable standards for presidential action. The Decision
thereby prevents the fulfillment of the political contract that exists between the Philippine President and the
Filipino people. In so doing, the Court has arrogated unto itself a power never imagined for it since the days of
Marbury v. Madison10 when the doctrine of judicial review was first laid down by the U.S. Supreme Court. The
majority does not only violate the separation of powers doctrine by its gratuitous intrusion into the powers of
the President which violation the Decision seeks to deny. Nay, the majority created a situation far worse the
usurpation by the judiciary of the sovereign power of the people to determine the priorities of Government.

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The Majority Decisions Expansive Views of the Powers of the Presidency and the Mandate of the Aquino
Government

The majority Decision starts with an expansive view of the powers of the Philippine presidency and what this
presidency is supposed to accomplish for the Filipino people:

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when
then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his
slogan, "Kung walang corrupt, walang mahirap." The Filipino people convinced in his sincerity and in his
ability to carry out this noble objective catapulted the good senator to the Presidency. 11

Here we have the majority affirming that there exists a political contract between the incumbent President and
the Filipino people that he must stamp out graft and corruption. It must be remembered that the presidency
does not exist for its own sake; it is but the instrument of the will of the people, and this relationship is
embodied in a political contract between the President and the people. This political contract creates many of
the same kinds of legal and constitutional imperatives under the social contract theory as organic charters do. It
also undergirds the moral legitimacy of political administrations. This political contract between President
Aquino and the Filipino people is a potent force that must be viewed with the same seriousness as the 1987
Constitution, whose authority is only maintained by the continuing assent thereto of the same Filipino people.

Then the Decision proceeds to affirm the power of the President to conduct investigations as a necessary
offshoot of his express constitutional duty to ensure that the laws are faithfully executed. 12 It then proceeds to
explain that fact-finding powers must necessarily carry the power to create ad hoc committees to undertake fact-
finding. And because the PTC is only an ad hoc committee that is to be funded from the approved budget of the
Office of the President, the Executive Order that created it is not a usurpation of any legislative power.

The Decision upholds in extensive affirmatory language what, since the creation of the Republic, has been
understood about the powers of the Presidency and the need for the effective exercise of the investigatory
powers of that office to serve state objectives. Unfortunately, it then breaks its own chain of thought and shrinks
the vista from its grand view of representative government to a view that is myopic and logically infirm.

The Majority Decisions Turn-Around to Unconstitutionally Restrict the Powers of the Aquino Presidency, its
Unpredictable Standard for "Reasonable Prioritization," and the Resulting Imposition of an Impossible
Condition on Aquinos Campaign Promise, as Well as Its Internal Contradiction

Having strongly expounded on the need of President Aquino to fulfill his political contract with the Filipino
people to address graft and corruption, and his constitutional duty to ensure that the laws are faithfully executed,
the Court suddenly finds itself impermissibly restricting this power when the object of the exercise of the
Presidential powers of investigation under EO 1 focused on the reported misdeeds of the Arroyo administration.
From full support of the incumbent President and his constitutional powers, the majority Decision reverses its
track to unconstitutionally restrict his powers by effectively denying him the right to choose the priority in this
case the Arroyo administration in his graft-busting campaign.

The reasoning of the Decision proceeds thus: (a) all past administrations are a class and to exclude other past
administrations is on its face unlawful discrimination; (b) the reasons given by the Solicitor General for the
limited scope of the intended investigation administrative overburden if other past administrations are
included, difficulty in unearthing evidence on old administrations, duplication of investigations already made
are either specious, irrelevant to the legitimate and noble objective of the PTC to stamp out corruption, or beside
the point and thus do not justify the discrimination; (c) to be constitutional, the PTC must, "at least, have
authority to investigate all past administrations"13 and "must not exclude the other past administrations"; 14 (d)
"[p]erhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to
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pass the test of reasonableness and not be an affront to the Constitution"; 15 and (e) "reasonable prioritization is
permitted," but "it should not be arbitrary lest it be struck down as unconstitutional."16

The Decision is telling the President to proceed with his program of anti-corruption on the condition that, when
constituting a fact-finding commission, he must include "all past administrations" without exception, save he
cannot be expected to investigate dead presidents 17 or those whose crimes have prescribed. He may prioritize,
but he must make sure such prioritization is not arbitrary.

In talking about an acceptable formulation for a fact-finding commission, it is as if the Decision is talking past
EO 1. The President has already made his fact-finding prioritization in EO 1, and his prioritization is not
arbitrary. The government has already explained why investigation of the Arroyo administration is its priority
(a) the audit of an immediate past administration is usually where audits begin; (b) the evidence of graft and
corruption is more likely to still be intact; (c) the most immediate deleterious effects of the reported graft and
corruption of the immediate past administration will need to be faced by the present administration; (d) the
resources required for investigation of the immediate past administration alone will take up all the resources of
the PTC; and (e) other past administrations have already been investigated and one past president has already
been jailed. But this Court is saying that all the above are not indicators of rational prioritization. Then, what is?
This Court seems to have set an inordinately high standard for reasonableness that is impossible to satisfy,
primarily because it is unknowable and unpredictable. The only conclusion is that there is no other standard out
there acceptable to the majority, and there never will be.18 Even the majority Decision gives no clue, and
perhaps the majority has no clue on what those reasonable standards are. As Justice Florentino Feliciano said in
his concurrence in Taada v. Tuvera:19

x x x The enforcement of prescriptions which are both unknown to and unknowable by those subjected to the
statute, has been throughout history a common tool of tyrannical governments. Such application and
enforcement constitutes at bottom a negation of the fundamental principle of legality in the relations between a
government and its people.

This is the red herring for the majority Decision to speak as if there were a way to "tweak" EO 1 so that it
becomes acceptable to the majority when in reality there is no way that can be done without loss of dignity to
the incumbent presidency. The tweaked EO, according to the Decision, must include all past administrations in
its coverage, and can identify its priority; but a reading of the Decision already indicates that the moment the
prioritization hints at focusing on the Arroyo administration, then the majority is ready to once again strike it
down. Such proposition is to require the Aquino administration to engage in hypocrisy to fact-find on "the
elephant in the room" without talking about that elephant in particular because the majority finds that to talk
about that particular elephant without talking about all other elephants is to deprive that particular elephant of
its equal protection right. This Court has imposed an unbearable and undignified yoke on the presidency. It is to
require the Aquino Presidency to pretend that addressing the reported graft and corruption of the Arroyo
administration was never a major campaign promise of this Presidency to the people.

It is incumbent upon any administration to conduct an internal audit of its organization in this case, the
executive department. This is standard practice in the private sector; it should likewise be standard practice for
the public sector if the mandate of public accountability is to be fulfilled. No President should be prevented
from creating administrative structures to exact accountability; from conducting internal audits and creating
controls for executive operations; and from introducing governance reforms. For the Court to do so would be to
counter progress and to deny the executive department the use of best practices that are par for the course in
modern democracies.

The Decision contradicts itself by concluding that the graft and corruption fact-finding mandate of the PTC is
confined only to those incidents in the Arroyo administration. In the same breath, it acknowledges that the
express language of EO 1 indicates that the President can expand the focus of the PTC at any time by including
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other past misdeeds of other administrations. In other words, the clear and unmistakable language of EO 1
precludes any conclusion that the PTCs investigation of graft and corruption is confined only to the
administration of President Arroyo. EO 1 should be read as empowering the PTC to conduct its fact-finding on
the Arroyo administration, and that this fact-finding may expand to include other past administrations on the
instruction of President Aquino.

The use of the word "only" in the majority Decision 20 is unwarranted, as it indicates exclusivity of the PTCs
focus on the Arroyo administration an exclusivity that is incompatible with the unequivocally non-exclusive
language of Sec. 17 of EO 1.21 The litmus test that should have been applied by this Court is whether or not EO
1 is unconstitutional for prioritizing fact-finding on the reported graft and corruption of the Arroyo
administration without foreclosing, but not guaranteeing, future investigation into other administrations.

Unwarranted Creation of "Class of All Political Administrations" as the Object of Constitutional Review
by This Court

At the outset, it must be emphasized that EO 1 did not, for purposes of application of the laws on graft and
corruption, create two classes that of President Arroyo and that of other past administrations. Rather, it
prioritized fact-finding on the administration of President Arroyo while saying that the President could later
expand the coverage of EO 1 to bring other past administrations under the same scrutiny. Prioritization per se is
not classification. Else, as all human activities require prioritization, everyone in a priority list for regulation or
investigation can make out a case that there is prima facie classification, and that the prioritization is not
supported by a reasonable objective. All acts of government would have to come to a halt and all public offices
would need to justify every plan of action as to reasonableness of phases and prioritization. The step-by-step
approach of legislative and regulatory remedies recognized as valid in Quinto v. COMELEC22 and in the case
law23 cited by the Decision in essence says that prioritization is not classification, much less invalid
classification.

The majority looks at the issue of equal protection by lumping into a single class all past administrations, 24 i.e.,
those of former Presidents Aguinaldo, Quezon, Osmea, Laurel, Roxas, Quirino, Magsaysay, Garcia,
Macapagal, Marcos, Aquino, Ramos, Estrada and Arroyo. Justice Carpio makes the case that recovery of ill-
gotten wealth is imprescriptible. Then conceivably under the formulation of the majority, all past
administrations are required to be investigated. In fact, even with the exceptions introduced by the Decision, its
conclusory parts emphasize the need to include all past administrations in the coverage of EO 1. It then
pronounces that any difference in treatment between members of this class is unequal protection, such that to
treat the Arroyo administration differently from the administration of President Aguinaldo is unconstitutional.
After all, says the majority Decision, corruption was reported in other past administrations as well.

The lumping together of all Philippine political administrations spanning 111 years, for purposes of testing valid
legislation, regulation, or even fact-finding is unwarranted. There is inherent illogic in the premise of the
Decision that administrations from the time of Aguinaldo to Arroyo belong to one class. 25

Assuming arguendo that all the political administrations can be categorized as one class, the test of
reasonableness has been more than met by EO 1, as extensively discussed by Justices Carpio, Carpio Morales,
Antonio Eduardo Nachura, and Roberto Abad. Let me just add to their voices by looking at the constitutional
problem before this Court from other angles.

The Majority Decision Indirectly Admits that the "Reasonableness Test" Has Been Satisfied in the Same
Breath that it Requires the Public to Live with an Unreal World View

To quote from the majority Decisions discussion of the claim of violation of the equal protection clause:

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Although the purpose of the Truth Commission falls within the investigative powers of the President ...

.........

... It must not leave out or "underinclude" those that should otherwise fall into a certain classification.

.........

As elucidated in Victoriano v. Elizalde Rope Workers Union and reiterated in a long line of cases,

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by statute. Equality of operation of
statutes does not mean indiscriminate operation on circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object to which it is directed or by the
territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality. All that is required of a valid classification is that it be reasonable, which
means that classification should be based on substantial distinctions which make for real differences, that it
must be germane to the purpose of the law; that it must apply equally to each member of the class. The Court
has held that the standard is satisfied if the classification is based on a reasonable foundation or rational basis
and is not palpably arbitrary.

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal
protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during the previous administration" only. The intent to
single out the previous administration is plain, patent and manifest ...

Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the
"previous administration" only.

... The OSG ventures to opine that "to include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness." The reason given is specious. It is without
doubt irrelevant to a legitimate and noble objective of the PTC to stamp out or "end corruption and the evil it
breeds."

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving
the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents
and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the
PTC expected to conduct simultaneous investigations of previous administrations, given the bodys limited time
and resources. "The Law does not require the impossible" (Lex non cognit ad impossibilia).

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a centurys worth of graft cases. However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not
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exclude the other past administration. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for
being unconstitutional.

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the law should not in any way be circumvented. The Constitution is the fundamental
and paramount law of the nation to which all other laws must conform and in accordance with which all private
rights determined and all public authority administered. Laws that do not conform to the Constitution should be
stricken down for being unconstitutional. While the thrust of the PTC is specific, that is, for investigation of acts
of graft and corruption, Executive Order No. 1, to survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the guise of "substantial distinctions" only an "adventure
in partisan hostility."

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number included within a class, but must be
of such nature as to embrace all those who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and
which are indistinguishable from those of the members of the class must be brought under the influence of the
law and treated by it in the same way as members of the class."

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal
protection clause" ... In several instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future legislations or regulations. These
cases refer to the "step by step" process. "With regard to equal protection claims, a legislature does not
run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or
otherwise, to cover every evil that might conceivably have been attacked."

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out
was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act,
event or report to be focused on unlike the investigative commissions created in the past. "The equal protection
clause is violated by purposeful and intentional discrimination."

... Although Section 17 allows the President the discretion to expand the scope of the investigations of the Truth
Commission so as to include the acts of graft and corruption, it does not guarantee that they would be covered
in the future. Such expanded mandate of the commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section would then be meaningless. This will only fortify
the fears of the petitioners that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials
and personalities of the Arroyo administration."26 (Emphasis and underscoring supplied)

In an earlier portion, I discussed the findings of the majority Decision regarding the mandate of President
Aquino from the electorate and the vast expanse of his powers to investigate and ensure the faithful execution of
the laws. The majority concedes the reasonableness of the purpose of EO 1, but, as shown in the above excerpts,
it contests the manner by which President Aquino proposes to achieve his purpose. The very discussion above,
however, demonstrates the self-contradiction and unreality of the majority Decisions worldview.

First, the Decision concedes that classification per se is not forbidden in the process of legislation or regulation.
Indeed, cases identified by the Decision, when examined, pronounce that the legislature and the regulators must
necessarily pick and choose in the process of their work.
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Second, in legislation or regulation, a step-by-step process resulting in a classification of those that are
immediately included therein versus those that have yet to be included in the future is constitutional.

Third, the Decision also concedes that the under-inclusiveness of remedial measures is not unconstitutional,
especially when the purpose can be attained through inclusive future legislation or regulation. I note of course,
that the Decision states in an earlier part that "under-inclusiveness" makes for invalid classification. It is
important to note the observation of Justice Carpio that the creation of the Presidential Commission on Good
Government (PCGG) has consistently been upheld by the Court despite constitutional challenges on equal
protection grounds. The PCGGs charter has the same "future inclusion" clause as Section 17 of EO 1; yet, the
majority Decision ignores jurisprudence on the PCGG.

Fourth, the Decision, through a quoted case,27 observes that valid under-inclusiveness can be the result of either
inadvertence or deliberateness.

Regardless of the foregoing findings and discussions, which in effect support its validity, EO 1 is struck down
by the Decision. The majority creates an argument for the invalidity of EO 1 by quoting only from general
principles of case law and ignoring specific applications of the constitutional tests for valid classification.
Instead of drawing from real-world experiences of classification decided in the past by the Court, the Decision
relies on general doctrinal statements normally found in cases, but divorces these doctrinal statements from their
specific contextual setting and thereby imposes unrealistic standards for presidential action.

The law has always been that a class can be validly distinguished from others if there is a reasonable basis for
the distinction. The reasonableness of the classification in EO 1 was amply demonstrated by the Solicitor
General, but the majority simply responds dismissively that the distinctions are superficial, specious and
irrelevant, without clearly explaining why they are so. Contrary to the conclusion of the majority, jurisprudence
bear out the substantial and reasonable nature of the distinction.

With respect to the first reason for the classification claimed by the Solicitor General that other past
administrations have already been investigated and, hence, there is constitutional basis not to include them in
the immediate focus of the investigation the case of Luna v. Sarmiento28 supports the conclusion that the
distinction is constitutional.

Commonwealth Act No. (CA) 703, which was sustained by Luna v. Sarmiento, created two sets of situations
one in which persons were delinquent in their tax payments for half of the year 1941 and the entirety of the
years 1942-45 (during the Japanese occupation), and another in which persons had paid their taxes for the said
periods. Only the first set of persons was benefited by the tax amnesty provision of CA 703. The law was silent
on the treatment of the tax payments made by compliant taxpayers during that period. A claim of unequal
protection was raised. The Court said:

Does this provision cover taxes paid before its enactment, as the plaintiff maintains and the court below held, or
does it refer, as the City Treasurer believes, only to taxes which were still unpaid?

There is no ambiguity in the language of the law. It says "taxes and penalties due and payable," the literal
meaning of which is taxes owed or owing. (See Webster's New International Dictionary.) Note that the
provision speaks of penalties, and note that penalties accrue only when taxes are not paid on time. The word
"remit" underlined by the appellant does not help its theory, for to remit is to desist or refrain from exacting,
inflicting, or enforcing something as well as to restore what has already been taken. (Webster's New
International Dictionary)

We do not see that literal interpretation of Commonwealth Act No. 703 runs counter and does violence to its
spirit and intention, nor do we think that such interpretation would be "constitutionally bad" in that "it
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would unduly discriminate against taxpayers who had paid in favor of delinquent taxpayers."The
remission of taxes due and payable to the exclusion of taxes already collected does not constitute unfair
discrimination. Each set of taxes is a class by itself, and the law would be open to attack as class legislation only
if all taxpayers belonging to one class were not treated alike. They are not. 29

In other words, within the class of taxpayers obligated to pay taxes in the period from the second half of 1941 to
the end of 1945 are two subclasses those who did not pay their taxes and those who did. By the same kind of
reasoning, within the class of political administrations, if past administrations have already been the subject of a
fact-finding commission, while one particular administration has not been so, that alone is a good basis for
making a distinction between them and an administration that has not yet been investigated. There is a
constitutionally valid basis, therefore, to distinguish between the Marcos, Ramos, and Estrada administrations
which have already been the subject of fact-finding commissions and the Arroyo administration.

With respect to the second reason for the classification that it would be unduly oppressive and burdensome to
require the PTC to investigate all administrations case law holds that administrative constraints are a valid
basis for classification.

In British American Tobacco v. Camacho,30 the Court declared the legislative classification freeze on the four-
tiered system of cigarette taxes as a valid and reasonable classification arising from practicality and
expediency.31Thus, freezing the tax classification of cigarettes based on their 1996 or 2003 net retail prices was
found to be the most efficient way to respond to Congress legitimate concern with simplifying tax collections
from cigarette products. In a similar vein, the President believed that the most efficient and effective way of
jump-starting his administrations fight against corruption was to focus on one freezable time frame the latest
past administration. The legitimate and valid administrative concern is obviously the limited resources and time
available to the PTC to make a comprehensive yet valuable fact-finding report with recommendations to
address the problem of graft and corruption in a timely and responsive manner within a period of two years.
Hence, there can be no violation of equal protection based on the fact that the PTCs investigation is limited to
the investigation of what can be feasibly investigated, a classification based on the Executives practical
administrative constraints.

With respect to the third reason for the classification made by EO 1, one that lumps together the various
temporal reasons, the Solicitor General describes it thus:

... The segregation of the preceding administration as the object of fact-finding is warranted by the reality that
unlike with administration long gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.

... The classification of the previous administration as a separate class for investigation lies in the reality that the
evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally
dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more
easily established in the regime that immediately precede the current administration.

The temporal dimension of every legal argument is supremely important, imposed by the inevitable fact that
this world and its inhabitants are creatures of space and time. Every public official, therefore, must accomplish
his duties within the constraints of space and time. To ignore the limitation of time by assuming that a public
official has all the time in the world to accomplish an investigative goal, and to force the subject of the universe
of his scrutiny to comprise all past administrations, is the height of legal unreasonableness. In other words,
according to the majority Decision, within the limited term of President Aquino, and within the more severely
limited life span of an ad hoc fact-finding committee, President Aquino must launch his pursuit to eradicate
graft and corruption by fact-finding into all past administrations spanning multitudes of decades. Truth
commissions, of which the PTC according to Chief Justice Corona is one, are all highly limited in
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investigations, statement taking, and transcribing information. 32 In order to be swift and independent, truth
commissions operate within strict time constraints. They are also restricted in the subject matter they can
review.33 This is the real world of truth commissions, not that imagined by the majority.

The Majority Decision Grievously Omitted the Analytical Process Required of this Court in Equal Protection
Claims

A judicial analysis must not stop at reciting legal doctrines which are its mere beginning points, but, especially
in equal protection claims, it must move forward to examine the facts and the context of the controversy. Had
the majority taken pains to examine its own cited cases, it would have discovered that the cases, far from
condemning EO 1, would actually support the constitutionality of the latter.

The majority Decision and the separate opinion of Chief Justice Corona rely greatly on Victoriano v. Elizalde
Rope Workers Union34 for their main doctrinal authority. The Court in that case held that the questioned
classification was constitutional, and it went through a step-by-step analysis to arrive at this conclusion. To
clarify the kind of analytical process that must go into an examination of the equal protection claim, let us quote
from the case in extenso:

Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects which
ban their members from joining labor unions, in violation of Article III, Section 1(7) of the 1935 Constitution;
and while said Act unduly protects certain religious sects, it leaves no rights or protection to labor
organizations.

... that said Act does not violate the constitutional provision of equal protection, for the classification of workers
under the Act depending on their religious tenets is based on substantial distinction, is germane to the purpose
of the law, and applies to all the members of a given class...

... All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship
does not render it unconstitutional; that if any reasonable basis may be conceived which supports the
statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of
the constitution in favor of the constitutionality of legislation should be adopted.

... In Aglipay v. Ruiz, this Court had occasion to state that the government should not be precluded from
pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or
sect...

The primary effects of the exemption from closed shop agreements in favor of members of religious sects that
prohibit their members from affiliating with a labor organization, is the protection of said employees against
the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on
their religious beliefs; and by eliminating to a certain extent economic insecurity due to unemployment, which
is a serious menace to the health, morals, and welfare of the people of the State, the Act also promotes the
well-being of society. It is our view that the exemption from the effects of closed shop agreement does not
directly advance, or diminish, the interests of any particular religion. Although the exemption may
benefit those who are members of religious sects that prohibit their members from joining labor unions,
the benefit upon the religious sects is merely incidental and indirect. The "establishment clause" (of
religion) does not ban regulation on conduct whose reason or effect merely happens to coincide or harmonize
with the tents of some or all religions. The free exercise clause of the Constitution has been interpreted to
require that religious exercise be preferentially aided.

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The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is directed or by the territory within which it
is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on substantial distinctions which make
for real differences; that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the class. This Court has held
that the standard is satisfied if the classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. Neither is it necessary
that the classification be made with mathematical nicety. Hence legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature
from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.

We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies
employees and workers, as to the effect and coverage of union shop security agreements, into those who
by reason of their religious beliefs and convictions cannot sign up with a labor union, and those whose
religion does not prohibit membership in labor unions. The classification rests on real or substantial, not
merely imaginary or whimsical, distinctions...

...The classification, introduced by Republic Act No. 3350, therefore, rests on substantial distinctions.

The classification introduced by said Act is also germane to its purpose. The purpose of the law is
precisely to avoid those who cannot, because of their religious belief, join labor unions, from being
deprived of their right to work and from being dismissed from their work because of union shop security
agreements.

Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of its
enactment. The law does not provide that it is to be effective for a certain period of time only. It is
intended to apply for all times as long as the conditions to which the law is applicable exist. As long as there are
closed shop agreements between an employer and a labor union, and there are employees who are prohibited by
their religion from affiliating with labor unions, their exemption from the coverage of said agreements
continues.

Finally, the Act applies equally to all members of said religious sects; this is evident from its provision.
The fact that the law grants a privilege to members of said religious sects cannot by itself render the Act
unconstitutional, for as We have adverted to, the Act only restores to them their freedom of association
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which closed shop agreements have taken away, and puts them in the same plane as the other workers
who are not prohibited by their religion from joining labor unions. The circumstance, that the other
employees, because they are differently situated, are not granted the same privilege, does not render the
law unconstitutional, for every classification allowed by the Constitution by its nature involves inequality.

The mere fact that the legislative classification may result in actual inequality is not violative of the right
to equal protection, for every classification of persons or things for regulation by law produces inequality
in some degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not
offend the constitution simply because in practice it results in some inequality. Anent this matter, it has
been said that whenever it is apparent from the scope of the law that its object is for the benefit of the
public and the means by which the benefit is to be obtained are of public character, the law will be
upheld even though incidental advantage may occur to individuals beyond those enjoyed by the general
public.35

The above analysis is the kind of processed reasoning to which EO 1 should be subjected. The majority
Decision falls short of satisfying this process.

On the first test. Is the classification reasonable, based on substantial distinctions that make for real difference?
The government has already given several reasons why the distinction between the administration of President
Arroyo is different from other past administrations. The distinction does not lie in any claim that corruption is
the sole hallmark of the Arroyo administration far from it. The distinction lies in reason administrative
constraints, availability of evidence, immediate past acts, non-prescription of causes of actions all of which
are not whimsical, contrived, superficial or irrelevant. It must also be emphasized that the Court, as quoted
above, recognizes that in many cases, the classification lies in narrow distinctions. We have already
discussed how in Luna v. Sarmiento the Court recognized subclasses within a class and upheld the narrow
distinction made by Congress between these subclasses. So if past administrations have already been the subject
of a fact-finding commission, while one particular administration has not been so subjected, that alone is a good
basis for making a distinction between them and an administration that has not yet been investigated. It must be
emphasized that the Victoriano case, which the majority heavily relied on, reiterated that as long as there is a
public benefit to be obtained in a government action, incidental advantage (and conversely, disadvantage) to a
group is not sufficient to upset the presumption of constitutionality of a government action.

On the second test. The classification is germane to the purpose of the law to get a headstart on the campaign
against graft and corruption. If the investigation into the root of corruption is to gain traction, it must start
somewhere, and the best place to start is to examine the immediate past administration, not distant past
administrations.

On the third test. Of course this is not relevant in this case, for the law being examined in Victoriano was one
that granted prospective rights, and not one that involves fact-finding into past acts as with EO 1.

On the last test. This asks whether the law applies equally to all members of the segregated class. It must be
emphasized that in the Victoriano case, this last test was applied not to all the workers in the bargaining unit,
but it was applied to the subclass of workers whose religions prohibit them from joining labor unions. In
application to this case, the question should then have been, not whether there is equality of treatment between
all political administrations under EO 1, but whether within the subclass of third level public officials of the
Arroyo administration that is, the subject of EO 1 there is unequal treatment. Obviously, the answer is no.
The majority applied the last test backwards by asking whether there is equality of treatment among all political
administrations and concluding that there was no equality of treatment, even before it could answer the first test
of whether the classification between the Arroyo administration and other past administrations was reasonable.

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It must be emphasized that the Victoriano case on which the majority heavily relies states in several parts that
classification must necessarily result in inequality of treatment and that such inequality does not give rise to a
constitutional problem. It is the lack of reason that gives rise to a constitutional issue, not the inequality per se.
To quote again:

The mere fact that the legislative classification may result in actual inequality is not violative of the right to
equal protection, for every classification of persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid. A classification otherwise reasonable does not offend the
constitution simply because in practice it results in some inequality. Anent this matter, it has been said that
whenever it is apparent from the scope of the law that its object is for the benefit of the public and the means by
which the benefit is to be obtained are of public character, the law will be upheld even though incidental
advantage may occur to individuals beyond those enjoyed by the general public. 36

Selective Investigation, Enforcement and Prosecution

Fact-finding or investigation can only begin by identifying the phenomenon, event or matter that is to be
investigated. Then it can only proceed if the fact-finder, or the authority under whom he works, identifies or
selects the persons to be investigated.

The validity of the Feliciano Commission created by Administrative Order No. (AO) 78 of former President
Arroyo is affirmed by the majority Decision. AO 78 zeroed in on the investigation of "the rebellion of
misguided military officers last July (2003)," in order "to investigate the roots of the rebellion and the
provocations that inspired it," and concludes that "this rebellion is deplorable." AO 78 labeled the officers
involved in the July 2003 Oakwood rebellion as "misguided" and cast their actions as "rebellion" and
"deplorable." President Arroyo selected a class the officers involved in the July 2003 "rebellion" in
contradistinction to all other all military officers who had ever rebelled against the Republic since its founding.
The acts were stigmatized as acts of "rebellion," a crime punishable by law. The majority does not condemn this
classification made in AO 78 by President Arroyo which uses condemnatory language on the class of people
targeted. In contrast, the language of EO 1 of President Aquino is mild, willing to grant the administration of
President Arroyo the benefit of the doubt by using adjectives to denote the tentativeness of the observations on
corruption such as "alleged" and "reported" instead of treating them as actuality. AO 78 is affirmed while EO 1
is struck down; no explanation for the differing treatment is made by the majority Decision. This difference in
treatment is disturbing considering the long history of the treatment by courts of the defense of selective
investigation and prosecution.

In fulfilling its duty to execute the laws and bring violators thereof to justice, the Executive is presumed to
undertake criminal prosecution "in good faith and in a nondiscriminatory fashion."37

The government has broad discretion over decisions to initiate criminal prosecutions 38 and whom to
prosecute.39Indeed, the fact that the general evil will only be partially corrected may serve to justify the limited
application of criminal law without violating the equal protection clause. 40 Mere laxity in the enforcement of
laws by public officials is not a denial of equal protection.41

Although such discretion is broad, it is not without limit. 42 In order to constitute denial of equal protection,
selective enforcement must be deliberately based on unjustifiable or arbitrary classification; the mere failure to
prosecute all offenders is no ground for the claim of a denial of equal protection.43 To support a claim of
selective prosecution, a defendant must establish a violation of equal protection and show that the prosecution
(1) had a discriminatory effect and (2) was motivated by a discriminatory purpose. 44 First, he must show that
"he has been singled out for prosecution while other similarly situated generally have not been proceeded
against for the type of conduct forming the basis of the charge against him." 45 Second, he must prove that his
selection for prosecution was invidious or in bad faith and was "based on impermissible considerations such
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as race, religion, or the desire to prevent the exercise of constitutional rights."46 In American constitutional
history, it is the traditionally oppressed racial or religious minorities and the politically disenfranchised who
have succeeded in making a case of unequal protection when their prejudiced status is shown to be the principal
invidious or bad faith consideration for the selective prosecution.

The standard for demonstrating selective prosecution therefore is demanding: a "presumption of regularity
supports prosecutorial decisions and in the absence of clear evidence to the contrary, courts presume that they
have properly discharged their official functions."47

In People v. Dela Piedra,48 the Philippine Supreme Court, adhering to the precedents set in American
jurisprudence, likewise denied the equal protection argument of an illegal recruiter, who claimed that others
who had likewise performed acts of recruitment remained scot-free:

The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory
classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is
not without more a denial of the equal protection of the laws. The unlawful administration by officers of a
statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a
denial of equal protection unless there is shown to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it
may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from
the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and
intentional discrimination." Appellant has failed to show that, in charging appellant in court, that there was a
"clear and intentional discrimination" on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence before
it can justify a reasonable belief that a person has committed an offense. The presumption is that the prosecuting
officers regularly performed their duties, and this presumption can be overcome only by proof to the contrary,
not by mere speculation. Indeed, appellant has not presented any evidence to overcome this presumption. The
mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguea,
the guilty party in appellant's eyes, was not, is insufficient to support a conclusion that the prosecution officers
denied appellant equal protection of the laws. (Emphasis supplied)

In the instant case, the fact that other administrations are not the subject of the PTCs investigative aim is not a
case of selective prosecution that violates equal protection. The Executive is given broad discretion to initiate
criminal prosecution and enjoys clear presumption of regularity and good faith in the performance thereof. For
petitioners to overcome that presumption, they must carry the burden of showing that the PTC is a preliminary
step to selective prosecution, and that it is laden with a discriminatory effect and a discriminatory purpose.
However, petitioner has sorely failed in discharging that burden.

The presumption of good faith must be observed, especially when the action taken is pursuant to a
constitutionally enshrined state policy such as the taking of positive and effective measures against graft and
corruption.49 For this purpose, the President created the PTC. If a law neither burdens a fundamental right nor
targets a suspect class, the Court must uphold the classification, as long as it bears a rational relationship to
some legitimate government end.50

The same presumption of good faith and latitude in the selection of what a truth commission must fact-find
must be given to the President. Too wide a mandate would no doubt drown the commission in a sea of history,
in the process potentially impeding the more forward-looking aspects of its work.51 To require the PTC to look
into all acts of large-scale corruption in all prior administrations would be to make truth-telling overly
comprehensive, resulting in a superficial fact-finding investigation of a multitude of allegations without depth
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and insightful analysis. The Philippines past experience with ad hoc investigating commissions has been
characterized by a focus on the truth regarding a key period or event in our collective history and by a
reasonable time frame for achieving their purpose, i.e., the assassination of Ninoy Aquino, 52 the 1989 coup
dtat,53 the 2003 Oakwood mutiny,54 the extra-judicial killings of media and activists, 55 and private armed
groups.56

Here, petitioners who are not even the injured parties are invoking the equal protection clause. Their standing to
raise this issue is seriously contested in the Dissent of Justice Carpio Morales. They do not claim in any manner
that they are the subject of EO 1. Courts have warned that the right of equal protection of the law "may not be
perversely invoked" to justify desistance by the authorities from the prosecution of a criminal case, just because
not all of those who are probably guilty thereof were charged. 57 This characterization would apply especially if
the ones who invoke the equal protection clause are those who are not injured by the contested executive action.

EO 1 activities are at most initiatory investigations. There is no preliminary investigation much less
prosecution to be conducted under the auspices of EO 1. The PTC is tasked to "collect, receive, review and
evaluate evidence related to or regarding the cases of large scale corruption," 58 tasks that constitutes nothing
more than a general inquiry into such reported cases in the previous administration. Similar to an initiatory
police investigation, the PTC is tasked with general fact-finding to uncover the truth of the events pertaining to
an alleged unsolved crime. To strike down the PTCs mandate to investigate the previous administration simply
because other administrations are not immediately included is tantamount to saying that a police investigation
of a recent murder case is violative of equal protection because there are other prior yet equally heinous murders
that remain uninvestigated and unsolved by the police.

What renders the plaint regarding an alleged violation of the equal protection clause ridiculous is that it is being
raised at the inception stage for the determination of possible criminal liability, where threat to liberty is most
absent. In contrast, with respect to petitions to stop later and more freedom-threatening stages in the
determination of criminal liability such as in formal criminal investigations and prosecutions, Philippine courts
instinctively reject the defense of a suspect or accused that the investigation is illegitimate because others who
may have also violated the relevant rule, are not being investigated. 59 In Gallardo v. People,60 the Supreme
Court held that there was no violation of the equal protection clause when the Ombudsman recommended the
filing of an information against a public officer, even if it had previously dismissed sixteen (16) other cases of
similar factual circumstances:

The contention that petitioners right to equal protection of the law has been transgressed is equally untenable.
The equal protection clause requires that the law operates uniformly on all persons under similar circumstances
or that all persons are treated in the same manner, the conditions not being different, both in privileges
conferred and the liabilities imposed. It allows reasonable classification. If the classification is characterized by
real and substantial differences, one class may be treated differently from another. Simply because the
respondent Ombudsman dismissed some cases allegedly similar to the case at bar is not sufficient to impute
arbitrariness or caprice on his part, absent a clear showing that he gravely abused his discretion in pursuing the
instant case. The Ombudsman dismissed those cases because he believed there were no sufficient grounds for
the accused therein to undergo trial. On the other hand, he recommended the filing of appropriate information
against petitioners because there are ample grounds to hold them for trial. He was only exercising his power and
discharging his duty based upon the constitutional mandate of his office. Stated otherwise, the circumstances
obtaining in the numerous cases previously dismissed by the Ombudsman are entirely divergent from those here
existing. (Emphasis supplied)

Even on the assumption that the recommendation of the PTC is that acts of graft and corruption were indeed
committed by the Arroyo administration, there is still a long way to go before the recommendation would ripen
to criminal prosecution, much less conviction. The Ombudsman must accept the referral and conduct its own
preliminary investigation. It must find probable cause, then file the appropriate information. The Court must
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then preside over a criminal trial at which the findings of the PTC have no conclusive effect on the Courts
ultimate judgment, in the same way they treated the findings of the Davide Commission in Kapunan v. Court of
Appeals:61

We do not wish to denigrate from the wisdom of the Davide Commission. However, its findings cannot be
deemed as conclusive and binding on this Court, or any court for that matter. Nothing in R.A. No. 6832
mandates that the findings of fact or evaluations of the Davide Commission acquire binding effect or otherwise
countermand the determinative functions of the judiciary. The proper role of the findings of fact of the Davide
Commission in relation to the judicial system is highlighted by Section 1 (c) of R.A. No. 6832, which requires
the Commission to [t]urn over to the appropriate prosecutorial authorities all evidence involving any person
when in the course of its investigation, the Commission finds that there is reasonable ground to believe that he
appears to be liable for any criminal offense in connection with said coup d'tat.

Whatever factual findings or evidence unearthed by the Davide Commission that could form the basis for
prosecutorial action still need be evaluated by the appropriate prosecutorial authorities to serve as the nucleus of
either a criminal complaint or exculpation therefrom. If a criminal complaint is indeed filed, the same findings
or evidence are still subject to the normal review and evaluation processes undertaken by the judge, to be
assessed in accordance with our procedural law. (Emphasis and underscoring supplied)

Who Fears the Truth?

Truth commissions operate on the premise that the truth if faced squarely, documented thoroughly, and
acknowledged officially will reduce the likelihood that a repetition of government abuses will recur in the
future.62 Official acknowledgment of the truth is extremely powerful in the healing process, especially in an
atmosphere previously dominated by official denial. 63 Aside from their cathartic value, truth commissions like
the PTC can be useful in uncovering the causes and patterns that led to such corruption, if it indeed existed, so
that it may be prevented in the future. The absence of any form of accountability for public officials past
misconduct of a grave nature and massive scale will promote a culture of impunity. If the present administration
does not demonstrate that it can hold accountable persons who committed acts of corruption, such inability may
be interpreted as a "license to engage in further acts of corruption"64 and embolden public officials to steal from
the government coffers more often and in greater quantity.

The Concurring Opinion of my esteemed colleague Justice Brion speaks to the fear that the PTC would be a
mind-conditioning commission such that if the Ombudsman, the Sandiganbayan or the Supreme Court itself
were to reject the PTCs findings, they would incur the ire of the people. The potential imminence of public
wrath would thus serve as a deterrent to rejection (and an incentive to acceptance) of the findings of the PTC.
He regards the release of the conclusions of the PTC as a "priming" mechanism upon the public, the
Ombudsman and the Court to concur with the PTCs way of thinking. He objects to the PTCs appropriation of
the word "truth" and assumes that all conclusions contrary to the PTCs would be more likely labeled as
"untruth." According to the Concurring Opinion, because President Aquino is highly trusted by Filipinos, then
repeated "truth" from him or his government would be believed, wholesale and with finality, by a credulous
people. This would thus, the Concurring Opinion states, bring undue pressure to bear on the Ombudsman, the
Sandiganbayan, and the Supreme Court: in the event of any of these bodies "go[ing] against the Commissions
report," the consequent public perception that said body sided with an "untruth" would compromise "the
authority, independence, and even the integrity of these constitutional bodies ... to the prejudice of the justice
system."65 Justice Brion theorizes that, in the light of the potential of the Commissions influence to "prime the
public" and "go beyond the level of priming" in a way that "can affect the public environment as well as the
thinking of both the decision makers in the criminal justice system and the public in general," the PTCs
primary role is "negated in actual application by the title Truth Commission and its truth-telling
function."66 According to the Concurring Opinion, this renders the Commission an "unreasonable means to a

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reasonable objective."67 I believe these arguments betray a very poor view of the Filipino people and that this
view lies at the root of his "due process" problem.

Woven as binding threads throughout the Concurring Opinion are a denial of an imbalance of power and an
unwillingness to see it shift in favor of a weaker group seeking redress for the perpetration of injustice against
its members. It is an oft-observed phenomenon that when there are attempts to address past abuses committed
by a powerful group, and when steps are taken to rectify the systemic inequalities, members of the powerful
group decry the threats represented by these efforts to rebalance the scales. In this manner cries and accusations
of reverse "discrimination" and "persecution" are raised by persons who have to answer to the demands of those
seeking the righting of past wrongs. This reaction may be viewed as part of a larger pattern of backlash, meant
to both "lash back" against those perceived to be behind the threat to the security of power and to return the
system to the state it occupied before attempts to seek redress were made. 68 In the United States, this pattern is
evident in various bills, policies and initiatives from the campaign rhetoric of a presidential contender,
immigration bills, and laws on language to university admissions policies that aim to challenge and minimize
any gains made by disadvantaged and subordinated groups over the past years. 69

To be sure, the differences both in history and circumstance, between the backlash experienced by various
disprivileged groups in the U.S. and the situation at hand, are not insignificant. However, the parallels that can
be drawn are striking and unsettling. In our present context, it is the Filipino people a great majority of whom
have been disprivileged by institutions that heavily favor the ruling elite that have suffered the damaging
consequences of graft and corruption. It is the Filipino people who have been wronged by past abuses and
systematic inequality; and it is they who now desire justice in truth. In the Philippine context, the pre-redress
state was that of an imbalance so great it allowed the immunity of past high officials (the privileged class) from
public accountability; members from such group will try to return to that state by seeking to continue eluding
accountability.

By ignoring the Filipino publics experience as a witness to the frustration of attempts to hold the past
administration accountable for its reported misdeeds, and framing it instead as a group that stands ready to
convict past officials at the bar of public opinion, the Concurring Opinion turns social reality on its head. It
minimizes the status of the Filipino people as a group wronged by the imbalance of power and the betrayal of
public trust. It ignores the need of this group to see these rectified. It ascribes an excess of strength to public
opinion and grounds its logic on fear of the public acting as an angry mob. It does not attribute the proper
importance to the active, participatory role the Filipino people desire to take in the process of dealing with the
possible misdeeds of the past.

Implicit in Justice Brions Concurring Opinion are the roles the public is expected to take: that of passive
observer, receiver of information and susceptible to the branding of "truth" and its repetition; 70 and that of a
source of pressure. In the latter role, the Concurring Opinion envisions the Filipino people, having adjudged
guilt according to what it was told by the PTC and the media, wielding the threat of public disapproval against
the Ombudsman and the judiciary so as to shift the burden to these bodies to demonstrate proof and the basis for
their actions if they were to disagree with the findings of the PTC. 71

This is gross speculation. It does not follow that repetition of information guarantees the acceptance of its
veracity; to make that logical leap in this instance is to insinuate that repetition would rob the Filipino people of
the capacity to make distinctions between what to accept and what to reject. Neither does it follow that the
Ombudsman and the judiciary must inevitably accede to public clamor, or that the entry of public opinion into
the discussion would cause a "qualitative change in the criminal justice system" and weaken "reliance on the
law, the rules and jurisprudence."72

The public does not need sheltering from the "potentially prejudicial effects of truth-telling." Nor is the public
to be viewed as unwitting victims to "a noisy minority [who] can change the course of a case simply because of
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their noise and the media attention they get."73 The Filipino people have a genuine stake in the addressing of
abuses possibly committed by the past administration and are entitled to information on the same.

Striking down efforts to give the public information regarding the misdeeds of powerful officials sends a signal
of the continuing dominance of "might makes right" and the futility of attempting to hold public officials
accountable for their actions. Conversely, by carrying out investigations of the past actions of public officials,
and by holding up its results to public scrutiny and criticism, the government reinforces respect for the rule of
law and educate the people on the nature and extent of past wrongdoing. 74 Moreover, the characterization of
public discussion the "second forum" as an inappropriate venue for the release of the PTC's findings
devalues the utility and meaning that truth possesses for the aggrieved group, and denigrates the need for the
construction and repair of the groups collective memory. Indeed, the Concurring Opinion implies that the
PTC's influence on public perceptions and consequently the shaping of the collective memory of Filipinos
will only instigate more injustice.

To the contrary, the need to shape collective memory as a way for the public to confront injustice and move
towards a more just society should not be diminished or denied. The Concurring Opinion disregards the
significance to justice of what is seen and remembered and eliminates the vital role of the people themselves in
"constructing collective memories of injustice as a basis for redress." 75 This disregard need not prevail. There is
much value to be found in memory, as Hom and Yamamoto recounted:

For many of the 10,000 Philippine citizens tortured and murdered for their political opposition to the former
Ferdinand Marcos regime, reshaping memory became both a means to challenge injustice and a psychological
end in itself. Consider the anguish of the family of Archimedes Trajano, a college student who posed a mildly
critical question to Marcos's daughter at a forum and was whisked away, tortured for days, and thrown off a
building. For his family, and thousands of others, there existed the need to create a new memory beyond the
excruciating story of personal loss and suffering a memory that included a sense of social justice and
government accountability. To write this new memory collectively, many families, lawyers, bureaucrats risked
much in the Philippines to aid the thirteen-year human rights multidistrict class action litigation in the United
States.76

While it is true that public opinion will be influenced by the information that the public can access, it would be
specious to claim that the possible turning of the tide of public opinion against those subject to investigation is
tantamount to a conviction before the court of the Filipino people. To declare the Filipino public undeserving of
the truth on the grounds of its supposed lack of capacity to deal with the truth and its alleged susceptibility to
the "priming" effect of the PTC's findings, while ignoring the publics need to know the truth and to seek
redress for wrongs, is to deny the public the means to move towards social justice.

In Razon v. Tagitis,77 the Court, speaking through no less than Justice Brion himself, affirmed the grant of the
Writ of Amparo petitioned by the wife of Engineer Morced Tagitis, and touched on the "the right of relatives
of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of
the disappeared and on the progress and results of the investigation," as expressed in the United Nations
Declaration on the Protection of All Persons from Enforced Disappearance. It would be inconsistent for this
Court not to afford the same level of openness and accountability in enforced disappearances of individuals to
allegations of criminal acts of massive corruption committed against the entire Philippine nation, under the
fundamental premise of Razon v. Tagitis that the Filipino have the right to know and can handle the truth. The
publics right to know78 and the concomitant public policy of full public disclosure79 support the fact-finding
mandate of the PTC to uncover the truth of these allegations and reports in the Arroyo administration. 80 Justice
Brions Concurring Opinion does not lay down enough legal basis for his argument that the PTC has to be
struck down due to the possibility of bias to be created in the public mind through public reports of the PTC and
the inordinate pressure this bias will bring on the Ombudsman and the judiciary. The Philippine judiciary has
had more than a centurys worth of experience dealing with judicial cases and criminal investigations under the
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harsh light of public scrutiny, yet not one case or investigation has been stopped on the simple basis of the
public forming a strong opinion on them and voicing this opinion in a loud manner. 81 A judge is expected to act
impartially and independently, under any set of circumstances, with or without the public as witness. This is the
role of a judge and if the neutrality required of a judge is not maintained, the fault lies not in the creation of a
fact-finding commission that started the search for truth, but in the judges character. To this end, the statement
of the Court in People v. Sesbreo82 on undue publicity and its effect on the right of the accused is worth
recalling:

x x x Besides, a thorough review of the records yields no sufficient basis to show that pervasive publicity
unduly influenced the court's judgment. Before we could conclude that appellant was prejudiced by hostile
media, he must first show substantial proof, not merely cast suspicions. There must be a showing that adverse
publicity indeed influenced the court's decision, as held in Webb v. De Leon, 247 SCRA 653 (1995) and People
v. Teehankee, 249 SCRA 54 (1995).

"[T]o 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."

"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
the 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 their impartiality. . . . Our judges
are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts does not per se 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 bar, the records do not show
that the trial judge developed actual bias against appellant 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. (Italics in the original)"

Absent a persuasive showing by the appellant that publicity prejudicial to his case was responsible for his
conviction by the trial judge, we cannot accept his bare claim that his conviction ought to be reversed on that
ground.

Justice Cardozo, the Judge and Society

In his Concurring Opinion, Justice Brion quotes Justice Benjamin Cardozo of the United States Supreme Court
in the context of "what the repeated" "truth from a generally trusted government can achieve" and "the effect of
outside influence on judging." The Concurring Opinion uses quotations from Justice Cardozo's book, The
Nature of the Judicial Process, to drive home its points on how "the Commission's influence can go beyond the
level of priming and can affect the public environment as well as the thinking of both the decision makers in the
criminal justice system and the public in general" and on the "potential prejudicial effects of truth-telling."83
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The source of the quotations featured in Justice Brion's Concurring Opinion is entitled "Adherence to
Precedent. The Subconscious Element in the Judicial Process. Conclusion," fourth in a series of lectures
delivered by Justice Cardozo at Yale University and subsequently published as a book. In the lecture, Justice
Cardozo spoke about the gaps left by absence of precedents in systems of law, the development of principles to
address these gaps, and adherence to the rule of precedent. With regard to the latter he expressed his belief that
"when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of
justice or with the social welfare, there should be less hesitation in frank avowal and full
abandonment."84 Building on this principle, he discussed the rule of precedent in application, and from there
went on to survey judicial methods, comparing "static" with "dynamic" precedents, narrating his personal
struggles first to find certainty, then to reconcile himself with uncertainty.

Throughout all this, one forms the image of a man fully aware of the doubts and tensions that beset a judge,
keenly cognizant of the limitations of his position and the temporal nature of even those principles of whose
development he earlier spoke: "I have grown to see that the process in its highest reaches is not discovery, but
creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of mind, the pangs of
death and the pangs of birth, in which principles that have served their day expire, and new principles are
born."85

Justice Cardozo was also conscious of the close intertwining between a judge's philosophy and the judicial
process, in his analysis of Roosevelt's statement on the philosophy of judges, the timeliness of their philosophy,
and the impact of the same on the decisions of the courts. 86 It is due to the limits of human nature, Justice
Cardozo conceded, that the ideal of "eternal verities" is beyond the reach of a judge; thus it is impossible to
completely eliminate the "personal measure of the [judicial] interpreter." Of such personal measures and the
signs of the times he wrote: "My duty as judge may be to objectify in law, not my own aspirations and
convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of
my time. Hardly shall I do this well if my own sympathies and beliefs and passionate devotions are with a time
that is past."87

It is clear that Justice Cardozo did not expect a judge to cut himself completely off from the pressures, forces,
and beliefs of his society far from it. "We may figure the task of the judge, if we please, as the task of a
translator, the reading of signs and symbols given from without,"88 he went on to say. Indeed, the first lines
of the paragraph quoted in Justice Brion's Concurring Opinion 89 state: "I have no quarrel, therefore, with the
doctrine that judges ought to be in sympathy with the spirit of their times."90 Justice Cardozo did not
regard the influence of "the truth without us" on the shaping of individual beliefs as harmful in and of itself, nor
did he say that judges must be completely free of outside influences. He spoke of the effect the thinking of the
group could play in the thinking of the individual, and how these factors and influences, as part of human
nature, might play out in the judicial process, without considering such effect as a problem. He wrote, following
his quoting of James Harvey Robinson, that "[t]he training of the judge, if coupled with what is styled the
judicial temperament, will help in some degree to emancipate him from the suggestive power of individual
dislikes and prepossessions. It will help to broaden the group to which his subconscious loyalties are due. Never
will these loyalties be utterly extinguished while human nature is what it is." 91

Accepting fully the flaws inherent in human nature and the "eccentricities of judges," optimistic in the belief
that "because [the flaws] are not only there but visible, we have faith that they will be corrected," 92 Justice
Cardozo concluded with words on the temporal nature of the work of a judge: "The work of a judge is in one
sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to
perish." It was in this sense the building of new structures upon good foundations, the rejection of errors as
they are determined by the years that Justice Cardozo wrote the lines that constitute the second excerpt quoted
in Justice Brion's Concurring Opinion. Preceding Justice Cardozo's quoting of Henderson, he wrote: "Little by
little the old doctrine is undermined. Often the encroachments are so gradual that their significance is at first
obscured. Finally we discover that the contour of the landscape has been changed, that the old maps must be
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cast aside, and the ground charted anew."93 It was change in the spirit of the times, in the principles
underpinning the judicial process, in the personal and very human beliefs of individual judges that Justice
Cardozo spoke of in this passage. It does not speak of damage wrought by societal influence, nor of
destructive or prejudicial effects due to shifts in public opinion and belief, but rather of how law develops
and changes. Indeed, Justice Cardozo ends on a note rich with hope in change:

Ever in the making, as law develops through the centuries, is this new faith which silently and steadily effaces
our mistakes and eccentricities. I sometimes think that we worry ourselves overmuch about the enduring
consequences of our errors. They may work a little confusion for a time. In the end, they will be modified or
corrected or their teachings ignored. The future takes care of such things. In the endless process of testing and
retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and
fine.94

Truly, the role of the judge is to do his utmost to exercise his independence, even against overwhelming
pressure, to uphold the rule of law. But simply because the possibility exists that the judiciary may go along
with a public that is hungry for the truth does not mean we do not allow the truth to be found out. As we can see
from a reading of Justice Cardozo's lecture, we need not fear societal influences and forces. The "truth without
us" does not negate the validity of "the truth within."

Appropriateness of Establishing a "Truth" Commission

In his Concurring Opinion, Justice Brion raises the points that: (1) the term "truth commission" is usually
reserved for a body "investigating the human rights violations that attended past violence and repression, and in
some instances for a body working for reconciliation in society," and (2) reconciliation is not present as one of
the goals of the PTC95. These two points, according to the Concurring Opinion, further distance the PTC from
other truth commissions; the latter point in particular thereby "remov[es] a justification for any massive
information campaign aimed at healing divisions that may exist in the nation."96

To arrive at this conclusion is to place unwarranted restrictions on the definitions and functions of bodies
bearing the name of "truth commission." While many truth commissions have indeed been established in the
wake of a violent conflict leading to a transition between two regimes, this does not preclude that truth
commissions in some countries may be used for circumstances that do not duplicate the violence of the conflict
or the character of the regime transition in other countries. The needs of various countries differ and
consequently determine a great deal of variation in the fundamental goals, purposes, and characteristics of the
bodies they establish, to deal with the abuses of previous administrations. 97 David Crocker puts forth the view
that even nations other than new democracies may see the need for ways to "reckon with past wrongs," and
classifies these other nations into three broad categories: (1) post-conflict societies aspiring to transition to
democracy, but occupied with pressing security issues; (2) authoritarian and conflict-ridden societies; (3)
mature democracies that are reckoning with abuses their own governments may have committed in the
past.98 The Philippine context does not, therefore, close off the avenue of a truth commission as a permissible
means to address past abuses. Likewise, a definition that expects reconciliation as a requisite goal for the
PTC99 is an unduly narrow definition.

Another argument raised in Justice Brions Concurring Opinion refers to the EO 1s creation of the PTC as a
"shortcut to the emergence of truth"100 one which should not be taken as it "bypass[es] processes established
by the Constitution and the laws." Because it deems "the international experiences that give rise to the title
Truth Commission" as not applying to the present Philippine situation and claims there is no need for "quick
transitional justice," the Concurring Opinion reasons that "there is no need to resort to... institutions and
mechanisms outside of those already in place."101 In other words, only the Ombudsman and the judiciary have
the rightful duopoly on truth-finding and truth-telling in graft and corruption cases.

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Yet the justifications for the use of truth commissions are not confined only to certain post-conflict scenarios or
the absence of functioning judicial systems. Even in some contexts where there is a judicial system already in
place, a truth commission may be used by the government as a redress mechanism.102 There are numerous
reasons prosecution and other means usually undertaken within the judicial system may not be viable. There
may be too many incidents to prosecute; due to the atmosphere of secrecy in which abuses took place, evidence
may be insufficient for a criminal conviction. 103 Current political policies, as well as concerns about vengeance
and the resulting societal tensions, may also make prosecution difficult or impossible. 104 The element of time
may also be a significant factor.105 In addition, some of the aims of truth commissions may be outside the
purview of courts, as in the case of giving an account of events that transpired: "A court is not supposed to give
an account about the circumstances of the historic, economic, and political reasons for a crime, nor about the
involvement of different groups in the society or political influence from the outside which may have
encouraged the perpetrators... Giving an account, providing explanations, and offering recommendations for a
better future are exactly the purposes of a truth commission."106 Means of redress attempted within the confines
of the judicial system may also not be viable precisely because of elements influencing the system itself.
Officials allied with the previous regime may also still retain power, and through various means hinder
proceedings undertaken within the judicial system.

This last point regarding situations wherein the former regime still possesses a certain degree of influence over
the system is especially salient in the light of state capture. According to the World Bank, state capture may be
treated as akin in essence to regulatory capture as it is used in economics literature: state regulatory agencies are
considered "captured" when they "regulate businesses in accordance with the private interests of the regulated
as opposed to the public interest for which they were established." State capture, then, encompasses the states
"capture" as evinced in the "formation of laws, rules, and decrees by a wider range of state institutions,
including the executive, ministries and state agencies, legislature, and the judiciary." 107 State capture alters the
"rules of the game" in favor of those who have captured the state. While state capture encompasses a variety of
situations, its fundamental characteristic is that it is channeled through illicit, informal, and non-transparent
means of providing private gains to public officials as incentives for these very officials to influence the
formation of laws and prejudice the rules to these captors narrow advantage.108 If public officials are perceived
to have been captured, the credibility of official processes such as rendering decrees, forming laws, and
shaping policies will suffer. It is not difficult to see how state capture may render traditional means such as
prosecution completely ineffective against those who may have captured the state.

To that end, S. Sandile Ngcobo writes:

...many transitional governments do not represent a complete break with the past. In some cases, members
of the police and security forces that were responsible for heinous acts under the old regime remain in
influential positions. Their numbers and their continued control of deadly weapons provide them with the
capability to undermine the peaceful transition. Their continued influence may threaten the new democratic
order, making prosecutions both undesirable and impractical. Given these realities, the emerging democracy
may be compelled to look for alternative approaches. At this point, a truth commission may become an
attractive option.109 (Emphasis supplied.)

It is true that in the Philippine context we may not be speaking of a past regimes continuing control of guns and
armed men; but power, in any form, is power. In any event, the appropriateness of naming the PTC as a "truth
commission" is not a legal argument for its invalidation, as Justice Brion himself conceded.

Unlawful Discrimination is not an Argument of the Powerful; the Phenomenon of State Capture

Unlawful discrimination, as shown in American cases on equal protection claims in criminal investigation and
prosecution, is not inherently an argument of the powerful, but that of the traditionally oppressed. This is
because the politically powerful, as in the past administration, still contain all the advantages that such past
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formal political power begot. It is the height of incongruity that an administration that held power for nine
years, successfully evaded all congressional investigations, and effectively invoked all legal defenses from
investigation for all those nine years will be extended the same immunity that the former presidential office
gave it. The Philippines will be the laughing stock of the world, incapable of correcting any error, unable to
erase the perception by many that it is a country where the law only serves the ends of the powerful.

If evidence will later turn out, congruent to the theory of some quarters as intimated by the Solicitor General
during the oral arguments, that the reason that former President Arroyo and her closest relatives and officials
have not been prosecuted by the present Ombudsman is because the Ombudsman is not independent but is
acting out of loyalty for her appointment to the position, then such evidence reinforces the immoral political
lesson that the misuse of the law and the power of appointment can be purposively committed to create a strong
shield of immunity from accountability. With or without such evidence, however, and especially because the
belief in the non-independence of the Ombudsman is openly expressed by people, the only way for this Court to
not abet such a plan if such a plan indeed existed on the part of Arroyo administration, is to allow the people to
exact accountability upon those from whom accountability is due. It must let the President fulfill his promise to
the people, and if the President believes that the best way for him is to start from fact-finding into the past
administration, then he must be allowed to do so without unconstitutional judicial restraint.

The "Least Dangerous" Branch

The majority took pains to reiterate the honorable role of the Court in exercising the constitutional and awesome
power of judicial review, amidst the recent string of rebukes against the initiatives of the legislature and elected
executives democratically elected representatives of the people.

In the seminal book "The Least Dangerous Branch: The Supreme Court at the Bar of Politics," Alexander M.
Bickel expounded on the "counter-majoritarian difficulty"110 of judicial review exercised by an unelected court
to declare null and void an act of the legislature or an elected executive in this wise:

The root difficulty is that judicial review is a counter-majoritarian force in our system. x x x when the Supreme
Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of
representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing
majority, but against it. That, without mystic overtones, is what actually happens. It is an altogether different
kettle of fish, and it is the reason the charge can be made that judicial review is undemocratic.111

Bickels "counter-majoritarian difficulty" is met by the argument that the Courts duty is to uphold the
Constitution, that in determining the "boundaries of the great departments of government" is not to assert
superiority over them but merely to assert its solemn and sacred obligation to determine conflicting claims of
authority under the Constitution.112

If the Court is to avoid illegitimacy in its actions as suggested by Professor Bickel, then it must ensure that its
discharge of the duty to prevent abuse of the Presidents executive power does not translate to striking down as
invalid even a legitimate exercise thereof, especially when the exercise is in keeping with the will of the
people.113Invalidating the PTC is an unconstitutional denial of the legitimate exercise of executive power and a
stinging reproach against the peoples sovereign right. Sadly, there is a wide fissure between the publics hunger
for governance justice through the successful delivery by President Aquino of his promise to get behind the
stories on corruption of the former administration, and the Courts confirmation of an alleged violation of
former President Arroyos equal protection right. To emphasize, it is not even former President Arroyo who is
officially raising this matter before the Court.

Rather than exercise judicial restraint, the majority has pushed the boundaries of judicial activism bordering on
what former Chief Justice Puno once described as an imperial judiciary:
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"[T]he Court should strive to work out a constitutional equilibrium where each branch of government cannot
dominate each other, an equilibrium where each branch in the exercise of its distinct power should be left alone
yet bereft of a license to abuse. It is our hands that will cobble the components of this delicate constitutional
equilibrium. In the discharge of this duty, Justice Frankfurter requires judges to exhibit that rare
disinterestedness of mind and purpose, a freedom from intellectual and social parochialism. The call for that
quality of "rare disinterestedness" should counsel us to resist the temptation of unduly inflating judicial power
and deflating the executive and legislative powers. The 1987 Constitution expanded the parameters of
judicial power, but that by no means is a justification for the errant thought that the Constitution created
an imperial judiciary. An imperial judiciary composed of the unelected, whose sole constituency is the
blindfolded lady without the right to vote, is counter-majoritarian, hence, inherently inimical to the central ideal
of democracy. We cannot pretend to be an imperial judiciary for in a government whose cornerstone rests on
the doctrine of separation of powers, we cannot be the repository of all remedies."114 (Emphasis supplied)

When forgotten, history does have a tendency to repeat itself. 115 Unless an official and comprehensive narrative
of findings of fact on large-scale corruption that reportedly occurred during the previous administration is made
public, the country may find the same alleged patterns of corruption repeating themselves. Worse, public
officials subject of the investigation and who may actually be guilty with continued possession or access to
power may spin these events and cause a revision of our history to make those allegations of wrongdoing appear
nothing more than unsubstantiated rumors whispered in secret and perpetuated by bitter opponents. The PTC is
a step towards national healing over a sordid past. The Court must allow the nation to move forward and the
peoples faith in a just and accountable government to be restored.

CONCURRING AND DISSENTING OPINION

NACHURA, J.:

Before us are two (2) consolidated petitions:

1. G.R. No. 192935 is a petition for prohibition filed by petitioner Louis Biraogo (Biraogo), in his
capacity as a citizen and taxpayer, assailing Executive Order (E.O.) No. 1, entitled "Creating the
Philippine Truth Commission of 2010" for violating Section 1, Article VI of the 1987 Constitution; and

2. G.R. No. 193036 is a petition for certiorari and prohibition filed by petitioners Edcel C. Lagman,
Rodolfo B. Albano, Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr., in their capacity as members
of the House of Representatives, similarly bewailing the unconstitutionality of E.O. No. 1.

First, the all too familiar facts leading to this cause celebre.

On May 10, 2010, Benigno Simeon C. Aquino III was elected President of the Philippines. Oft repeated during
his campaign for the presidency was the uncompromising slogan, "Kung walang corrupt, walang mahirap."

Barely a month after his assumption to office, and intended as fulfillment of his campaign promise, President
Aquino, on July 30, 2010, issued Executive Order No. 1, to wit:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle
that a public office is a public trust and mandates that public officers and employees, who are servants of the

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people, must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation
of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of
a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples trust
and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and
confidence in the Government and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last elections "kung walang
corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the evil it
breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of
the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this
end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by the public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent
collegial body.

SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and recommendation to the President,
Congress and the Ombudsman. In particular, it shall:

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 a) Identify and determine the reported cases of such graft and corruption which it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporation, to produce documents,
books, records and other papers;

c) Upon proper request and representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules
of Court of the Philippines be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities,
by means of a special or interim report and recommendation, all evidence on corruption of public
officers and employees and their private sector co-principals, accomplices or accessories, if any, when in
the course of its investigation the Commission finds that there is reasonable ground to believe that they
are liable for graft and corruption under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;

i) Engage or contract the services of resource person, professional and other personnel determined by it
as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
and purposes of this Order.

SECTION 3. Staffing Requirements. The Commission shall be assisted by such assistants and personnel as
may be necessary to enable it to perform its functions, and shall formulate and establish its organization
structure and staffing pattern composed of such administrative and technical personnel as it may deem
necessary to efficiently and effectively carry out its functions and duties prescribed herein, subject to the
approval of the Department of Budget and Management. The officials of the Commission shall in particular
include, but not limited to, the following:

a. General Counsel

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 b. Deputy General Counsel

c. Special Counsel

d. Clerk of the Commission

SECTION 4. Detail of Employees. The President, upon recommendation of the Commission, shall detail such
public officers or personnel from other department or agencies which may be required by the Commission. The
detailed officers and personnel may be paid honoraria and/or allowances as may be authorized by law, subject
to pertinent accounting and auditing rules and procedures.

SECTION 5. Engagement of Experts. The Truth Commission shall have the power to engage the services of
experts as consultants or advisers as it may deem necessary to accomplish its mission.

SECTION 6. Conduct of Proceedings. The proceedings of the Commission shall be in accordance with the
rules promulgated by the Commission. Hearings or proceedings of the Commission shall be open to the public.
However, the Commission, motu propio, or upon the request of the person testifying, hold an executive or
closed-door hearing where matters of national security or public safety are involved or when the personal safety
of the witness warrants the holding of such executive or closed-door hearing. The Commission shall provide the
rules for such hearing.

SECTION 7. Right to Counsel of Witnesses/Resources Persons. Any person called to testify before the
Commission shall have the right to counsel at any stage of the proceedings.

SECTION 8. Protection of Witnesses/Resource Persons. The Commission shall always seek to assure the
safety of the persons called to testify and, if necessary make arrangements to secure the assistance and
cooperation of the Philippine National Police and other appropriate government agencies.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative disciplinary action. Any private person who does
the same may be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance to the Commission. The departments, bureaus, offices, agencies or
instrumentalities of the Government, including government-owned and controlled corporations, are hereby
directed to extend such assistance and cooperation as the Commission may need in the exercise of its powers,
execution of its functions and discharge of its duties and responsibilities with the end in vies of accomplishing
its mandate. Refusal to extend such assistance or cooperation for no valid or justifiable reason or adequate cause
shall constitute a ground for disciplinary action against the refusing official or personnel.

SECTION 11. Budget for the Commission. The Office of the President shall provide the necessary funds for
the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.

SECTION 12. Office. The Commission may avail itself of such office space which may be available in
government buildings accessible to the public space after coordination with the department or agencies in
control of said building or, if not available, lease such space as it may require from private owners.

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SECTION 13. Furniture/Equipment. The Commission shall also be entitled to use such equipment or furniture
from the Office of the President which are available. In the absence thereof, it may request for the purchase of
such furniture or equipment by the Office of the President.

SECTION. 14. Term of the Commission. The Commission shall accomplish its mission on or before
December 31, 2012.

SECTION 15. Publication of Final Report. On or before December 31, 2012, the Commission shall render a
comprehensive final report which shall be published upon the directive of the president. Prior thereto, also upon
directive of the President, the Commission may publish such special interim reports it may issue from time to
time.

SECTION 16. Transfer of Records and Facilities of the Commission. Upon the completion of its work, the
records of the Commission as well as its equipment, furniture and other properties it may have acquired shall be
returned to the Office of the President.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall
not affect the validity and effectivity of the other provisions hereof.

Section 19. Effectivity. This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Without delay, petitioners Biraogo and Congressmen Lagman, Albano, Datumanong, and Fua filed their
respective petitions decrying the constitutionality of the Truth Commission, primarily, for being a usurpation by
the President of the legislative power to create a public office.

In compliance with our Resolution, the Office of the Solicitor General (OSG) filed its Consolidated Comment
to the petitions. Motu proprio, the Court heard oral arguments on September 7 and 28, 2010, where we required
the parties, thereafter, to file their respective memoranda.

In his Memorandum, petitioner Biraogo, in the main, contends that E.O. No. 1 violates Section 1, Article VI of
the 1987 Constitution because it creates a public office which only Congress is empowered to do. Additionally,
"considering certain admissions made by the OSG during the oral arguments," the petitioner questions the
alleged intrusion of E.O. No. 1 into the independence of the Office of the Ombudsman mandated in, and
protected under, Section 5, Article XI of the 1987 Constitution.

Holding parallel views on the invalidity of the E.O., petitioner Members of the House of Representatives raise
the following issues:
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I.

EXECUTIVE ORDER NO. 1 CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010 VIOLATES
THE PRINCIPLE OF SEPARATION OF POWERS BY USURPING THE POWERS OF THE CONGRESS
(1) TO CREATE PUBLIC OFFICES, AGENCIES AND COMMISSIONS; AND (2) TO APPROPRIATE
PUBLIC FUNDS.

II.

EXECUTIVE ORDER NO. 1 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE 1987
CONSTITUTION BECAUSE IT LIMITS THE JURISDICTION OF THE PHILIPPINE TRUTH
COMMISSION TO OFFICIALS AND EMPLOYEES OF THE "PREVIOUS ADMINISTRATION" (THE
ADMINISTRATION OF OFRMER PRESIDENT GLORIA MACAPAGAL-ARROYO).

III.

EXECUTIVE ORDER NO. 1 SUPPLANTS THE CONSTITUTIONALLY MANDATED POWERS OF THE

OFFICE OF THE OMBUDSMAN AS PROVIDED IN THE 1987 CONSTITUTION AND SUPPLEMENTED
BY REPUBLIC ACT NO. 6770 OR THE "OMBUDSMAN ACT OF 1989."

Expectedly, in its Memorandum, the OSG traverses the contention of petitioners and upholds the
constitutionality of E.O. No. 1 on the strength of the following arguments:

I.

PETITIONERS HAVE NOT AND WILL NOT SUFFER DIRECT PERSONAL INJURY WITH THE
ISSUANCE OF EXECUTIVE ORDER NO. 1. PETITIONERS DO NOT HAVE LEGAL STANDING TO
ASSAIL THE CONSTITUTIONALITY OF EXECUTIVE ORDER NO. 1.

II.

EXECUTIVE ORDER NO. 1 IS CONSTITUTIONAL AND VALID. EXECUTIVE ORDER NO. 1 DOES
NOT ARROGATE THE POWERS OF CONGRESS TO CREATE A PUBLIC OFFICE AND TO
APPROPRIATE FUNDS FOR ITS OPERATIONS.

III.

THE EXECUTIVE CREATED THE TRUTH COMMISSION PRIMARILY AS A TOOL FOR NATION-
BUILDING TO INDEPENDENTLY DETERMINE THE PRINCIPAL CAUSES AND CONSEQUENCES OF
CORRUPTION AND TO MAKE POLICY RECOMMENDATIONS FOR THEIR REDRESS AND FUTURE
PREVENTION. ALTHOUGH ITS INVESTIGATION MAY CONTRIBUTE TO SUBSEQUENT
PROSECUTORIAL EFFORTS, THE COMMISSION WILL NOT ENCROACH BUT COMPLEMENT THE
POWERS OF THE OMBUDSMAN AND THE DOJ IN INVESTIGATING CORRUPTION.

IV.

EXECUTIVE ORDER NO. 1 IS VALID AND CONSTITUTIONAL. IT DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE. THE TRUTH COMMISSION HAS LEGITIMATE AND LAUDABLE
PURPOSES.

In resolving these issues, the ponencia, penned by the learned Justice Jose Catral Mendoza, concludes that:
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 1. Petitioners have legal standing to file the instant petitions; petitioner Biraogo only because of the
transcendental importance of the issues involved, while petitioner Members of the House of
Representatives have standing to question the validity of any official action which allegedly infringes on
their prerogatives as legislators;

2. The creation of the Truth Commission by E. O. No. 1 is not a valid exercise of the Presidents power
to reorganize under the Administrative Code of 1987;

3. However, the Presidents power to create the herein assailed Truth Commission is justified under
Section 17,1 Article VII of the Constitution, albeit what may be created is merely an ad hoc
Commission;

4. The Truth Commission does not supplant the Ombudsman or the Department of Justice (DOJ) nor
erode their respective powers; and

5. Nonetheless, E.O. No. 1 is unconstitutional because it transgresses the equal protection clause
enshrined in Section 1, Article III of the Constitution.

I agree with the ponencia that, given our liberal approach in David v. Arroyo 2 and subsequent cases, petitioners
have locus standi to raise the question of constitutionality of the Truth Commissions creation. I also concur
with Justice Mendozas conclusion that the Truth Commission will not supplant the Office of the Ombudsman
or the DOJ, nor impermissibly encroach upon the latters exercise of constitutional and statutory powers.

I agree with the ponencia that the President of the Philippines can create an ad hoc investigative body. But more
than that, I believe that, necessarily implied from his power of control over all executive departments and his
constitutional duty to faithfully execute the laws, as well as his statutory authority under the Administrative
Code of 1987, the President may create a public office.

However, I find myself unable to concur with Justice Mendozas considered opinion that E.O. No. 1 breaches
the constitutional guarantee of equal protection of the laws.

Let me elucidate.

The Truth Commission is a Public Office

The first of two core questions that confront the Court in this controversy is whether the President of the
Philippines can create a public office. A corollary, as a consequence of statements made by the Solicitor
General during the oral argument, is whether the Truth Commission is a public office.

A public office is defined as the right, authority, or duty, created and conferred by law, by which for a given
period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some
sovereign power of government to be exercised by him for the benefit of the public. 3 Public offices are created
either by the Constitution, by valid statutory enactments, or by authority of law. A person who holds a public
office is a public officer.

Given the powers conferred upon it, as spelled out in E.O. No. 1, there can be no doubt that the Truth
Commission is a public office, and the Chairman and the Commissioners appointed thereto, public officers.

As will be discussed hereunder, it is my respectful submission that the President of the Philippines has ample
legal authority to create a public office, in this case, the Truth Commission. This authority flows from the
Presidents constitutional power of control in conjunction with his constitutional duty to ensure that laws be
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faithfully executed, coupled with provisions of a valid statutory enactment, E.O. No. 292, otherwise known as
the Administrative Code of 1987.

E. O. No. 1 and the Executive Power

Central to the resolution of these consolidated petitions is an understanding of the "lines of demarcation" of the
powers of government, i.e., the doctrine of separation of powers. The landmark case of Government of the
Philippine Islands v. Springer4 has mapped out this legal doctrine:

The Government of the Philippines Islands is an agency of the Congress of the United States. The powers which
the Congress, the principal, has seen fit to entrust to the Philippine Government, the agent, are distributed
among three coordinate departments, the executive, the legislative, and the judicial. It is true that the Organic
Act contains no general distributing clause. But the principle is clearly deducible from the grant of powers. It is
expressly incorporated in our Administrative Code. It has time and again been approvingly enforced by this
court.

No department of the government of the Philippine Islands may legally exercise any of the powers conferred by
the Organic Law upon any of the others. Again it is true that the Organic Law contains no such explicit
prohibitions. But it is fairly implied by the division of the government into three departments. The effect is the
same whether the prohibition is expressed or not. It has repeatedly been announced by this court that each of the
branches of the Government is in the main independent of the others. The doctrine is too firmly imbedded in
Philippine institutions to be debatable.

It is beyond the power of any branch of the Government of the Philippine islands to exercise its functions in any
other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. The
Governor-General must find his powers and duties in the fundamental law. An Act of the Philippine Legislature
must comply with the grant from Congress. The jurisdiction of this court and other courts is derived from the
constitutional provisions.

xxx

The Organic Act vests "the supreme executive power" in the Governor-General of the Philippine Islands. In
addition to specified functions, he is given "general supervisions and control of all the departments and bureaus
of the government of the Philippine Islands as far is not inconsistent with the provisions of this Act." He is also
made "responsible for the faithful execution of the laws of the Philippine islands and of the United States
operative within the Philippine Islands." The authority of the Governor-General is made secure by the important
proviso "that all executive functions of Government must be directly under the governor-General or within one
of the executive departments under the supervision and control of the governor-general." By the Administrative
Code, "the governor-general, as Chief executive of the islands, is charged with the executive control of the
Philippine Government, to be exercised in person or through the Secretaries of Departments, or other proper
agency, according to law."

These "lines of demarcation" have been consistently recognized and upheld in all subsequent Organic Acts
applied to the Philippines, including the present fundamental law, the 1987 Constitution.

Section 1, Article VII of the 1987 Constitution 5 vests executive power in the President of the Philippines. On
the nature of the executive power, Justice Isagani A. Cruz writes:

Executive power is briefly described as the power to enforce and administer the laws, but it is actually more
than this. In the exercise of this power, the President of the Philippines assumes a plenitude of authority, and the
corresponding awesome responsibility, that makes him, indeed, the most influential person in the land.6
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In National Electrification Administration v. Court of Appeals, 7 this Court said that, as the administrative head
of the government, the President is vested with the power to execute, administer and carry out laws into
practical operation. Impressed upon us, then, is the fact that executive power is the power of carrying out the
laws into practical operation and enforcing their due observance.

Relevant to this disquisition are two specific powers that flow from this "plenitude of authority." Both are found
in Section 17, Article VII of the Constitution.8 They are commonly referred to as the power of control and the
take care clause.

Section 17 is a self-executing provision. The Presidents power of control is derived directly from the
Constitution and not from any implementing legislation. 9 On the other hand, the power to take care that the laws
be faithfully executed makes the President a dominant figure in the administration of the government. The law
he is supposed to enforce includes the Constitution itself, statutes, judicial decisions, administrative rules and
regulations and municipal ordinances, as well as the treaties entered into by our government.10 At almost every
cusp of executive power is the Presidents power of control and his constitutional obligation to ensure the
faithful execution of the laws.

Demonstrating the mirabile dictu of presidential power and obligation, we declared in Ople v. Torres: 11

As head of the Executive Department, the President is the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his department. He has control
over the executive department, bureaus and offices. This means that he has the authority to assume directly the
functions of the executive department, bureau and office, or interfere with the discretion of its officials.
Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the
maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and
offices under his control to enable him to discharge his duties effectively.

Mondano v. Silvosa,12 defines the power of control as "the power of an officer to alter, modify, or set aside
what a subordinate officer had done in the performance of his duties, and to substitute the judgment of the
former for that of the latter." It includes the authority to order the doing of an act by a subordinate, or to undo
such act or to assume a power directly vested in him by law. 13

In this regard, Araneta v. Gatmaitan14 is instructive:

If under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban fishing by
trawl, then the President of the Philippines may exercise the same power and authority because of the following:
(a) The President shall have control of all the executive departments, bureaus or offices pursuant to Section
10(1), Article VII, of the Constitution; (b) Executive Orders may be issued by the President under Section 63 of
the Revised Administrative Code :governing the general performance of duties by public employees or
disposing of issues of general concern;" and (c) Under Section 74 of the Revised Administrative Code, "All
executive functions of the Government of the Republic of the Philippines shall be directly under the Executive
Department, subject to the supervision and control of the President of the Philippines in matters of general
policy."

Our ruling in City of Iligan v. Director of Lands15 echoes the same principle in this wise:

Since it is the Director of Lands who has direct executive control among others in the lease, sale or any form of
concession or disposition of the land of the public domain subject to the immediate control of the Secretary of
Agriculture and Natural Resources, and considering that under the Constitution the President of the Philippines
has control over all executive departments, bureaus and offices, etc., the President of the Philippines has

220
therefore the same authority to dispose of the portions of the public domain as his subordinates, the Director of
Lands, and his alter-ego the Secretary of Agriculture and Natural Resources.

From these cited decisions, it is abundantly clear that the overarching framework in the Presidents power of
control enables him to assume directly the powers of any executive department, bureau or office. Otherwise
stated, whatever powers conferred by law upon subordinate officials within his control are powers also vested in
the President of the Philippines. In contemplation of law, he may directly exercise the powers of the Secretary
of Foreign Affairs, the Secretary of National Defense, the Commissioner of Customs, or of any subordinate
official in the executive department. Thus, he could, for example, take upon himself the investigatory functions
of the Department of Justice, and personally conduct an investigation. If he decides to do so, he would be at
liberty to delegate a portion of this investigatory function to a public officer, or a panel of public officers, within
his Office and under his control. There is no principle of law that proscribes his doing so. In this context, the
President may, therefore, create an agency within his Office to exercise the functions, or part of the functions,
that he has assumed for himself. Even the ponencia admits that this can be done.

When this power of control is juxtaposed with the constitutional duty to ensure that laws be faithfully executed,
it is obvious that, for the effective exercise of the take care clause, it may become necessary for the President to
create an office, agency or commission, and charge it with the authority and the power that he has chosen to
assume for himself. It will not simply be an exercise of the power of control, but also a measure intended to
ensure that laws are faithfully executed.

To reiterate, the take care clause is the constitutional mandate for the President to ensure that laws be faithfully
executed. Dean Vicente G. Sinco observed that the Presidents constitutional obligation of ensuring the faithful
execution of the laws "is a fundamental function of the executive head [involving] a two-fold task, [i.e.,] the
enforcement of laws by him and the enforcement of laws by other officers under his direction." 16

As adverted to above, the laws that the President is mandated to execute include the Constitution, statutes,
judicial decisions, administrative rules and regulations and municipal ordinances. Among the constitutional
provisions that the President is obliged to enforce are the following General Principles and State Policies of the
1987 Philippine Constitution:

Section 4, Article II: The prime duty of government is to serve and protect the people x x x

Section 5, Article II: The maintenance of peace and order, the protection of life, liberty and property, and
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.

Section 9, Article II: The State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an improved quality of life for all.

Section 13, Article II: The State values the dignity of every human person and guarantees full respect for human
rights.

Section 27, Article II: The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 28, Article II: 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.

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Closer to home, as head of the biggest bureaucracy in the country, the President must also see to the faithful
execution of Section 1, Article XI of the Constitution, which reads: "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."

These are constitutional provisions the enforcement of which is inextricably linked to the spirit and objective of
E.O. No. 1.

Although only Section 1, Article XI, is cited in the Whereas clauses of E. O. No. 1, the President is obliged to
execute the other constitutional principles as well. Absent any law that provides a specific manner in which
these constitutional provisions are to be enforced, or prohibits any particular mode of enforcement, the
President could invoke the doctrine of necessary implication, i.e., that the express grant of the power in Section
17, Article VII, for the President to faithfully execute the laws, carries with it the grant of all other powers
necessary, proper, or incidental to the effective and efficient exercise of the expressly granted power. 17 Thus, if
a Truth Commission is deemed the necessary vehicle for the faithful execution of the constitutional mandate on
public accountability, then the power to create the same would necessarily be implied, and reasonably derived,
from the basic power granted in the Constitution. Accordingly, the take care clause, in harmony with the
Presidents power of control, along with the pertinent provisions of the Administrative Code of 1987, would
justify the issuance of E. O. No. 1 and the creation of the Truth Commission.

Further to this discussion, it is cogent to examine the administrative framework of Executive Power, as outlined
in the Administrative Code.

Quite logically, the power of control and the take care clause precede all others in the enumeration of the
Powers of the President. Section 1, Book III, Title I simply restates the constitutional provision, to wit:

SECTION 1. Power of Control.The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.

Next in the enumeration is the ordinance power of the President which defines executive orders, thus:

SEC. 2. Executive Orders. - Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

At the bottom of the list are the other powers (Chapter 7, Book III of the Code) of the President, which include
the residual power, viz:

SEC. 19. Powers Under the Constitution.The President shall exercise such other powers as are provided for in
the Constitution.

SEC. 20. Residual Powers.Unless Congress provides otherwise, the president shall exercise such other
powers and functions vested in the President which are provided for under the laws and which are not
specifically enumerated above, or which are not delegated by the President in accordance with law.

In addition, pursuant to the organizational structure of the Executive Department, 18 one of the powers granted to
the President is his continuing authority to reorganize his Office:19

SEC. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:
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 (1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.

Consistent therewith, the Administrative Code provides in Section 1, Chapter 1, Book IV (The Executive
Branch) that "[t]he Executive Branch shall have such Departments as are necessary for the functional
distribution of the work of the President and for the performance of their functions." Hence, the primary
articulated policy in the Executive Branch is the organization and maintenance of the Departments to insure
their capacity to plan and implement programs in accordance with established national policies.20

With these Administrative Code provisions in mind, we note the triptych function of the Truth Commission,
namely: (1) gather facts; (2) investigate; and (3) recommend, as set forth in Section 1 of E.O. No. 1:

SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which shall [1] primarily seek and find the truth on, and toward
this end, [2] investigate reports of graft and corruption of such scale and magnitude that shock and offend the
moral and ethical sensibilities of the people, committed by the public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any, during the previous administration; and
thereafter [3] recommend the appropriate action or measure to be taken thereon to ensure that the full measure
of justice shall be served without fear or favor. (emphasis and numbering supplied)

It is plain to see that the Truth Commissions fact-finding and investigation into "reports of large scale
corruption by the previous administration" involve policy-making on issues of fundamental concern to the
President, primarily, corruption and its linkage to the countrys social and economic development.

On this point, I differ from the ponencia, as it reads the Presidents power to reorganize in a different light, viz:

The question, therefore, before the Court is this: Does the creation of the Truth Commission fall within the
ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional and structural lines: (1) restructuring the
internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof
or transferring functions from one unit to another; (2) transferring any function under the Office of the President
to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President
to any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent by a modification or alteration thereof has to be effected.
The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the
answer is in the negative.

xxx

xxx [T]he creation of the Truth Commission is not justified by the presidents power of control. Control is
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter. Clearly, the power
of control is entirely different from the power to create public offices. The former is inherent in the Executive,
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while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully
execute the laws.

I am constrained to disagree because, contrary to the ponencias holding, the Presidents power to reorganize is
not limited by the enumeration in Section 31 of the Administrative Code.

As previously discussed, the Presidents power of control, in conjunction with his constitutional obligation to
faithfully execute the laws, allows his direct assumption of the powers and functions of executive departments,
bureaus and offices.21 To repeat, the overarching framework in the Presidents power of control enables him to
assume directly the functions of an executive department. On the macro level, the President exercises his power
of control by directly assuming all the functions of executive departments, bureaus or offices. On the micro
level, the President may directly assume certain or specific, not all, functions of a Department. In the milieu
under which the Truth Commission is supposed to operate, pursuant to E. O. No. 1, only the investigatory
function of the DOJ for certain crimes is directly assumed by the President, then delegated to the Truth
Commission. After all, it is axiomatic that the grant of broad powers includes the grant of a lesser power; in this
case, to be exercised and delegated at the Presidents option.

My conclusion that the transfer of functions of a Department to the Office of the President falls within the
Presidents power of reorganization is reinforced by jurisprudence.

In Larin v. Executive Secretary,22 the Court sustained the Presidents power to reorganize under Section 20,
Book III of E.O. 292, in relation to PD No. 1416, as amended by PD No. 1772:

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

"Sec. 20. Residual Powers.Unless Congress provides otherwise, the President shall exercise such other
powers and functions vested in the President which are provided for under the laws and which are not
specifically enumerated above or which are not delegated by the President in accordance with law.

This provision speaks of such other powers vested in the president under the law. What law then gives him the
power to reorganize? It is Presidential decree No. 1772 which amended Presidential Decree no. 1416. These
decrees expressly grant the President of the Philippines the continuing authority to reorganize the national
government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities and to standardize salaries and materials. The
validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees,
executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or revoked." So far, there is yet not law amending
or repealing said decrees.

Subsequently, Buklod ng Kawaning EIIB v. Zamora,23 affirmed the holding in Larin and explicitly recognized
the Presidents authority to transfer functions of other Departments or Agencies to the Office of the President,
consistent with his powers of reorganization, to wit:

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very sources of the powerthat
which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the president." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v. Aguirre, we ruled that reorganization
"involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
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redundancy of functions." It takes place when there is an alteration of the existing structure of government or
units therein, including the lines of control, authority and responsibility between them. xxx (emphasis supplied)

Then, and quite significantly, in Bagaoisan v. National Tobacco Administration, 24 this Court clarified the nature
of the grant to the President of the power to reorganize the administrative structure of the Office of the
President, thus:

In the recent case of Rosa Ligaya C. Domingo, et. al. v. Hon. Ronaldo d. Zamora, in his capacity as the
Executive Secretary, et. al., this Court has had occasion to also delve on the Presidents power to reorganize the
Office of the President under Section 31 (2) and (3) of Executive Order No. 292 and the power to reorganize the
Office of the President Proper. The Court has there observed:

"x x x. Under Section 31(1) of E.O. 292, the President can reorganize the Office of the President Proper by
abolishing, consolidating or merging units, or by transferring functions from one unit to another. In contrast,
under Section 31(2) and (3) of EO 292, the Presidents power to reorganize offices outside the Office of the
President Proper but still within the Office of the President is limited to merely transferring functions or
agencies from the Office of the President to Departments or Agencies, and vice versa."

The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292 (Administrative code of 1987),
above-referred to, reads thusly:

Sec. 31. Continuing Authority of the President to Reorganize his Office. - The President, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority
to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the
following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.

The first sentence of the law is an express grant to the President of a continuing authority to reorganize the
administrative structure of the Office of the President. The succeeding numbered paragraphs are not in the
nature of provisos that unduly limit the aim and scope of the grant to the President of the power to reorganize
but are to be viewed in consonance therewith. Section 31(1) of Executive order No. 292 specifically refers to
the Presidents power to restructure the internal organization of the Office of the President Proper, by
abolishing, consolidating or merging units hereof or transferring functions from unit to another, while Section
31(2) and (3) concern executive offices outside the Office of the President Proper allowing the President to
transfer any function under the Office of the President to any other Department or Agency and vice versa, and
the transfer of any agency under the Office of the President to any other department or agency and vice versa.
(Emphasis supplied)

Notably, based on our ruling in Bagaoisan, even if we do not consider P.D. No. 1416, as amended by P.D. No.
1772, the abstraction of the Truth Commission, as fortified by the Presidents power to reorganize found in
paragraph 2, Section 31 of the Administrative Code, is demonstrably permitted.

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That the Truth Commission is a derivative of the reorganization of the Office of the President should brook no
dissent. The President is not precluded from transferring and re-aligning the fact-finding functions of the
different Departments regarding certain and specific issues, because ultimately, the Presidents authority to
reorganize is derived from the power-and-duty nexus fleshed out in the two powers granted to him in Section
17, Article VII of the Constitution.25

I earnestly believe that, even with this Courts expanded power of judicial review, we still cannot refashion, and
dictate on, the policy determination made by the President concerning what function, of whichever Department,
regarding specific issues, he may choose to directly assume and take cognizance of. To do so would exceed the
boundaries of judicial authority and encroach on an executive prerogative. It would violate the principle of
separation of powers, the constitutional guarantee that no branch of government should arrogate unto itself
those functions and powers vested by the Constitution in the other branches. 26

In fine, it is my submission that the Truth Commission is a public office validly created by the President of the
Philippines under authority of law, as an adjunct of the Office of the President to which the President has
validly delegated the fact-finding and investigatory powers [of the Department of Justice] which he had chosen
to personally assume. Further, it is the product of the Presidents exercise of the power to reorganize the Office
of the President granted under the Administrative Code.

This conclusion inevitably brings to the threshold of our discussion the matter of the "independence" of the
Truth Commission, subject of an amusing exchange we had with the Solicitor General during the oral argument,
and to which the erudite Justice Arturo D. Brion devoted several pages in his Separate Concurring Opinion. The
word "independent," as used in E. O. No. 1, cannot be understood to mean total separateness or full autonomy
from the Office of the President. Being a creation of the President of the Philippines, it cannot be totally
dissociated from its creator. By the nature of its creation, the Truth Commission is intimately linked to the
Office of the President, and the Executive Order, as it were, is the umbilical cord that binds the Truth
Commission to the Office of the President.

The word "independent," used to describe the Commission, should be interpreted as an expression of the intent
of the President: that the Truth Commission shall be accorded the fullest measure of freedom and objectivity in
the pursuit of its mandate, unbound and uninhibited in the performance of its duties by interference or undue
pressure coming from the President. Our exchange during the oral argument ended on this note: that while the
Truth Commission is, technically, subject to the power of control of the President, the latter has manifested his
intention, as indicated in the Executive Order, not to exercise the power over the acts of the Commission.

E. O. No. 1 and the Equal Protection Clause

Enshrined in Section 1, Article III of the Philippine Constitution is the assurance that all persons shall enjoy the
equal protection of the laws, expressed as follows:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws. (emphasis supplied)

The equality guaranteed under this clause is equality under the same conditions and among persons similarly
situated; it is equality among equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished. 27 When things or persons are different in
fact or circumstances, they may be treated in law differently. On this score, this Court has previously intoned
that:

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
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agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification should be based on
substantial distinctions which make for real differences; that it must be germane to the purpose of the law; that
it must not be limited to existing conditions only; and that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. 28

Thus, when a statute or executive action is challenged on the ground that it violates the equal protection clause,
the standards of judicial review are clear and unequivocal:

It is an established principle in constitutional law that the guaranty of the equal protection of the laws is not
violated by a legislation based on a reasonable classification. Classification, to be valid, must: (1) rest on
substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only;
and (4) apply equally to all members of the same class.29

Further, in a more recent decision, we also declared:

In consonance thereto, we have held that "in our jurisdiction, the standard and analysis of equal protection
challenges in the main have followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach
of the Constitution." x x x.

Under this test, a legislative classification, to survive an equal protection challenge, must be shown to rationally
further a legitimate state interest. The classifications must be reasonable and rest upon some ground of
difference having a fair and substantial relation to the object of the legislation. Since every law has in its favor
the presumption of constitutionality, the burden of proof is on the one attacking the constitutionality of the law
to prove beyond reasonable doubt that the legislative classification is without rational basis. The presumption of
constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and
oppressive discrimination against particular persons and classes, and that there is no conceivable basis which
might support it.30

The "rational basis" test is one of three "levels of scrutiny" analyses developed by courts in reviewing
challenges of unconstitutionality against statutes and executive action. Carl Cheng, in his dissertation,
"Important Right and the Private Attorney General Doctrine,"31 enlightens us, thus:

[I]n the area of equal protection analysis, the judiciary has developed a level of scrutiny analysis for resolving
the tensions inherent in judicial review. When engaging in this analysis, a court subjects the legislative or
executive action to one of three levels of scrutiny, depending on the class of persons and the rights affected by
the action. The three levels are rational basis scrutiny, intermediate scrutiny, and strict scrutiny. If a particular
legislative or executive act does not survive the appropriate level of scrutiny, the act is held to be
unconstitutional. If it does survive, it is deemed constitutional. The three tensions discussed above and, in turn,
the three judicial responses to each, run parallel to these three levels of scrutiny. In response to each tension, the
court applies a specific level of scrutiny.

He goes on to explain these "levels of scrutiny", as follows:

The first level of scrutiny, rational basis scrutiny, requires only that the purpose of the legislative or executive
act not be invidious or arbitrary, and that the acts classification be reasonably related to the purpose. Rational
basis scrutiny is applied to legislative or executive acts that have the general nature of economic or social
welfare legislation. While purporting to set limits, rational basis scrutiny in practice results in complete judicial
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deference to the legislature or executive. Thus, a legislative or executive act which is subject to rational basis
scrutiny is for all practical purposes assured of being upheld as constitutional.

The second level of scrutiny, intermediate scrutiny, requires that the purpose of the legislative or executive act
be an important governmental interest and that the acts classification be significantly related to the purpose.
Intermediate scrutiny has been applied to classifications based on gender and illegitimacy. The rationale for this
higher level of scrutiny is that gender and illegitimacy classifications historically have resulted from invidious
discrimination. However, compared to strict scrutiny, intermediate scrutinys presumption of invidious
discrimination is more readily rebutted, since benign motives are more likely to underlie classifications
triggering intermediate scrutiny.

The third level of scrutiny is strict scrutiny. Strict scrutiny requires that the legislative or executive acts purpose
be a compelling state interest and that the acts classification be narrowly tailored to the purpose. Strict scrutiny
is triggered in two situations: (1) where the act infringes on a fundamental right; and (2) where the acts
classification is based on race or national origin. While strict scrutiny purports to be only a very close judicial
examination of legislative or executive acts, for all practical purposes, an act subject to strict scrutiny is assured
of being held unconstitutional. (Citations omitted.)

that, in a host of cases, this Court has recognized the applicability of the foregoing tests. Among them are City
of Manila v. Laguio, Jr.,32 Central Bank Employees Association v. Bangko Sentral ng Pilipinas, 33 and British
American Tobacco v. Camacho, et al.,34 in all of which the Court applied the minimum level of scrutiny, or the
rational basis test.

It is important to remember that when this Court resolves an equal protection challenge against a legislative or
executive act, "[w]e do not inquire whether the [challenged act] is wise or desirable xxx. Misguided laws may
nevertheless be constitutional. Our task is merely to determine whether there is some rationality in the nature of
the class singled out."35

Laws classify in order to achieve objectives, but the classification may not perfectly achieve the
objective.36 Thus, in Michael M. v. Supreme Court of Sonoma County, 37 the U.S. Supreme Court said that the
relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the line
chosen [by the legislature] is within constitutional limitations. The equal protection clause does not require the
legislature to enact a statute so broad that it may well be incapable of enforcement. 38

It is equally significant to bear in mind that when a governmental act draws up a classification, it actually
creates two classes: one consists of the people in the "statutory class" and the other consists precisely of those
people necessary to achieve the objective of the governmental action (the "objective class"). 39 It could happen
that

The "statutory class" may include "more" than is necessary in the classification to achieve the objective. If so,
the law is "over-inclusive." The classification may also include "less" than is necessary to achieve the objective.
If so, the statute is "under-inclusive."

A curfew law, requiring all persons under age eighteen to be off the streets between the hours of midnight and 6
a.m., presumably has as its objective the prevention of street crime by minors; this is "over-inclusive" since the
class of criminal minors (the objective class) is completely included in the class of people under age eighteen
(the statutory class), but many people under age eighteen are not part of the class of criminal minors.

A city ordinance that bans streetcar vendors in a heavily visited "tourist quarter" of the city in order to alleviate
sidewalk and street congestion is "under-inclusive". All streetcar vendors (the statutory class) contribute toward

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sidewalk and street congestion, but the class of people causing sidewalk and street congestion (the objective
class) surely includes many others as well.

It is rare if not virtually impossible for a statutory class and an objective class to coincide perfectly. 40

And, as the ponencia itself admits, "under-inclusion" or "over-inclusion, per se, is not enough reason to
invalidate a law for violation of the equal protection clause, precisely because perfection in classification is not
required.41

Thus, in the determination of whether the classification is invidious or arbitrary, its relation to the purpose must
be examined. Under the rational basis test, the presence of any plausible legitimate objective for the
classification, where the classification serves to accomplish that objective to

any degree, no matter how tiny, would validate the classification. To be invalidated on constitutional grounds,
the test requires that the classification must have one of the following traits: (1) it has absolutely no conceivable
legitimate purpose; or (2) it is so unconnected to any conceivable objective, that it is absurd, utterly arbitrary,
whimsical, or even perverse.42

Given the foregoing discussion on this constitutional guarantee of equal protection, we now confront the
question: Does the mandate of Executive Order No. 1, for the Truth Commission to investigate "graft and
corruption during the previous administration," violate the equal protection clause?

I answer in the negative.

First, because Executive Order No. 1 passes the rational basis test.

To repeat, the first level of scrutiny known as the rational basis test, requires only that the purpose of the
legislative or executive act not be invidious or arbitrary, and that the acts classification be reasonably related to
the purpose. The classification must be shown to rationally further a legitimate state interest. 43 In its recent
equal protection jurisprudence, the Court has focused primarily upon (1) the "rationality" of the governments
distinction, and (2) the "purpose" of that distinction.

To the point, we look at the definition of an executive order and the articulated purpose of E.O. No. 1.

An executive order is an act of the President providing for rules in implementation or execution of
constitutional or statutory powers.44 From this definition, it can easily be gleaned that E. O. No. 1 is intended to
implement a number of constitutional provisions, among others, Article XI, Section 1. In fact, E.O. No. 1 is
prefaced with the principle that "public office is a public trust" and "public officers and employees, who are
servants of the people, must at all time be accountable to the latter, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives."

What likewise comes to mind, albeit not articulated therein, is Article II, Section 27, of the 1987 Constitution,
which declares that "[t]he State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption." In addition, the immediately following section provides:
"[s]ubject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest."45 There is also Article XI, Section 1, which sets the
standard of conduct of public officers, mandating that "[p]ublic 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." There is, therefore, no gainsaying that the enforcement of these
provisions, i.e., the fight against corruption, is a compelling state interest.

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Not only does the Constitution oblige the President to ensure that all laws be faithfully executed, 46 but he has
also taken an oath to preserve and defend the Constitution. 47 In this regard, the Presidents current approach to
restore public accountability in government service may be said to involve a process, starting with the creation
of the Truth Commission.

It is also no secret that various commissions had been established by previous Presidents, each specifically
tasked to investigate certain reports and issues in furtherance of state interest. Among the latest of such
commissions is the Zearosa Commission, empowered to investigate the existence of private armies, as well as
the Maguindanao Massacre.48

Under E.O. No. 1, the President initially classified the investigation of reports of graft and corruption during the
previous administration because of his avowed purpose to maintain the public trust that is characteristic of a
public office. The first recital (paragraph) of E.O. No. 1 does not depart therefrom. The succeeding recitals
(paragraphs) enumerate the causality of maintaining public office as a public trust with corruption as "among
the most despicable acts of defiance of this principle and notorious violation of this mandate." Moreover, the
President views corruption as "an evil and scourge which seriously affects the political, economic, and social
life of a nation." Thus, the incumbent President has determined that the first phase of his fight against graft and
corruption is to have reports thereof during the previous administration investigated. There is then a palpable
relation between the supposed classification and the articulated purpose of the challenged executive order.

The initial categorization of the issues and reports which are to be the subject of the Truth Commissions
investigation is the Presidents call. Pursuing a system of priorities does not translate to suspect classification
resulting in violation of the equal protection guarantee. In his assignment of priorities to address various
government concerns, the President, as the

Chief Executive, may initially limit the focus of his inquiry and investigate issues and reports one at a time. As
such, there is actually no differential treatment that can be equated to an invalid classification.

E.O. No. 1 cannot be subjected to the strict level of scrutiny simply because there is a claimed inequality on its
face or in the manner it is to be applied. On its face, there is actually no class created. The ponencia harps on
three provisions in the executive order directing the conduct of an investigation into cases of large scale graft
and corruption "during the previous administration." On that basis, the ponencia concludes that there is
invidious discrimination, because the executive order is focused only on the immediate past administration.

I disagree. While the phrase "previous administration" alludes to persons, which may, indeed, be a class within
the equal protection paradigm, it is important to note that the entire phrase is "during the previous
administration," which connotes a time frame that limits the scope of the Commissions inquiry. The phrase
does not really create a separate class; it merely lays down the pertinent period of inquiry. The limited period of
inquiry, ostensibly (but only initially) excluding administrations prior to the immediate past administration, is
not, per se, an intentional and invidious discrimination anathema to a valid classification. Even granting that the
phrase creates a class, E.O. No. 1 has not, as yet, been given any room for application, since barely a few days
from its issuance, it was subjected to a constitutional challenge. We cannot allow the furor generated by this
controversy over the creation of the Truth Commission to be an excuse to apply the strict scrutiny test, there
being no basis for a facial challenge, nor for an "as-applied" challenge.

To reiterate for emphasis, the determination of the perceived instances of graft and corruption that ought to
claim priority of investigation is addressed to the executive, as it involves a policy decision. This determination
must not to be overthrown simply because there are other instances of graft and corruption which the Truth
Commission should also investigate.49 In any event, Section 17 of E.O. No. 1 responds to this objection, when it
provides:

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SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

It may also be pointed out that E.O. No. 1 does not confer a right nor deprive anyone of the exercise of his right.
There is no right conferred nor liability imposed that would constitute a burden on fundamental rights so as to
justify the application of the strict scrutiny test. A fact-finding investigation of certain acts of public officers
committed during a specific period hardly merits this Courts distraction from its regular functions. If we must
exercise the power of judicial review, then we should use the minimum level of scrutiny, the rational basis test.

On more than one occasion, this Court denied equal protection challenges to statutes without evidence of a clear
and intentional discrimination.50 The pervasive theme in these rulings is a claim of discriminatory prosecution,
not simply a claim of discriminatory investigation. In People v. Piedra, 51 we explained:

The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory
classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is
not without more a denial of the equal protection of the laws. The unlawful administration by officers of a
statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a
denial of equal protection unless there is shown to be present in it an element of intentional or purposeful
discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it
may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from
the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and
intentional discrimination." Appellant has failed to show that, in charging appellant in court, that there was a
"clear and intentional discrimination" on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence before
it can justify a reasonable belief that a person has committed an offense. The presumption is that the
prosecuting officers regularly performed their duties, and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome
this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime,
while a Zamboanguea, the guilty party in appellant's eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality
in sustaining appellant's prosecution.

While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that
they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a
defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement
of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x.
Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no
person has the right to demand protection of the law in the commission of a crime.

Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted
into a defense for others charged with crime, the result would be that the trial of the district attorney for
nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the
enforcement of law would suffer a complete breakdown. (emphasis supplied.)

Evidently, the abstraction of the Presidents power to directly prosecute crimes, hand in hand with his duty to
faithfully execute the laws, carries with it the lesser power of investigation. To what extent, then, should this
Court exercise its review powers over an act of the President directing the conduct of a fact-finding
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investigation that has not even commenced? These are clearly issues of wisdom and policy. Beyond what is
presented before this Court, on its face, the rest remains within the realm of speculation.

It bears stressing that by tradition, any administrations blueprint for governance covers a wide range of
priorities. Contrary to the ponencias conclusion, such a roadmap for governance obviously entails a "step by
step" process in the Presidents system of priorities.

Viewed in this context, the fact that the "previous administration" was mentioned thrice in E.O. No. 1, as
pointed out by the ponencia, is not "purposeful and intentional discrimination" which violates the equal
protection clause. Such a circumstance does not demonstrate a "history of purposeful unequal treatment, or
relegated to such a position of political powerlessness as to command extraordinary protection from the
majoritarian political process."52 It simply has to be taken in the light of the Presidents discretion to determine
his governments priorities.

It, therefore, remains unclear how the equal protection clause is violated merely because the E. O. does not
specify that reports of large scale graft and corruption in other prior administrations should likewise be
investigated. Notably, the investigation of these reports will not automatically lead to prosecution, as E.O No. 1
only authorizes the investigation of certain reports with an accompanying recommended action.

The following provisions of the executive order are too clear to brook objection:

1. 5th Whereas Clause

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the evil, restore the peoples faith and
confidence in the Government and in their public servants;

2. Section 1

SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this
end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by the public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration; and thereafter
recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.

3. Section 2

SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving
third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and recommendation to the President,
Congress and the Ombudsman.

Second, petitioners do not even attempt to overthrow the presumption of constitutionality of executive acts.
They simply hurl pastiche arguments hoping that at least one will stick.

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In any imputed violations of the equal protection clause, the standard of judicial review is always prefaced by a
presumption of constitutionality:

As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate branch of the
Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-honored principle that
statute is presumed to be valid. This presumption is rooted in the doctrine of separation of powers which enjoins
upon the three coordinate departments of the Government a becoming courtesy for each others acts. Hence, to
doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest studies were made
by Congress, or the President, or both, to insure that the Constitution would not be breached. This Court,
however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and
unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words, before a
statute or a portion thereof may be declared unconstitutional, it must be shown that the statute or issuance
violates the Constitution clearly, palpably and plainly, and in such a manner as to leave no doubt or hesitation in
the mind of the Court.53

Clearly, the acts of the President, in the exercise of his or her power, is preliminarily presumed constitutional
such that the party challenging the constitutionality thereof (the executive act) on equal protection grounds
bears the heavy burden of showing that the official act is arbitrary and capricious. 54

Indeed, laws or executive orders, must comply with the basic requirements of the Constitution, and as
challenged herein, the equal protection of the laws. Nonetheless, only in clear cases of invalid classification
violative of the equal protection clause will this Court strike down such laws or official actions.

Third, petitioner Members of the House of Representatives are not proper parties to challenge the
constitutionality of E.O. No. 1 on equal protection grounds. Petitioner Members of the House of
Representatives cannot take up the lance for the previous administration. Under all three levels of scrutiny
earlier discussed, they are precluded from raising the equal protection of the laws challenge. The perceptive
notation by my esteemed colleague, Justice Carpio Morales, in her dissent, comes to life when she observes that
petitioner Members of the House of Representatives cannot vicariously invoke violation of equal protection of
the laws. Even assuming E.O. No. 1 does draw a classification, much less an unreasonable one, petitioner
Members of the House of Representatives, as well as petitioner Biraogo, are not covered by the supposed
arbitrary and unreasonable classification.

If we applied both intermediate and strict scrutiny, the nakedness of petitioners arguments are revealed because
they do not claim violation of any of their fundamental rights, nor do they cry discrimination based on race,
gender and illegitimacy. Petitioners equal protection clause challenge likewise dissolves when calibrated
against the purpose of E.O. No. 1 and its supposed classification of the administration which the Truth
Commission is tasked to investigate. Nowhere in the pleadings of petitioners and their claim of violation of
separation of powers and usurpation of legislative power by the executive is it established how such violation or
usurpation translates to violation by E.O. No. 1 of the equal protection of the laws. Thus, no reason exists for
the majority to sustain the challenge of equal protection if none of the petitioners belong to the class, claimed by
the majority to be, discriminated against.

Finally, I wish to address the proposition contained in Justice Brions concurrence the creation of the Truth
Commission has a reasonable objective, albeit accomplished through unreasonable means. According to him,
E.O. No. 1 is objectionable on due process grounds as well. He propounds that the "truth-telling" function of the
Truth Commission violates due process because it primes the public to accept the findings of the Commission
as actual and gospel truth.

Considering all the foregoing discussion, I must, regrettably, disagree with the suggestion. Peculiar to our
nation is a verbose Constitution. Herein enshrined are motherhood statements exhortations for public officers
233
to follow. A quick perusal of E.O. No. 1 bears out a similar intonation. Although the Solicitor General may have
made certain declarations, read as admissions by the other Members of this Court, these cannot bind the
Supreme Court in interpreting the constitutional grant of executive power. The matter is simply a failure of
articulation which cannot be used to diminish the power of the executive. On the whole, the erroneous
declarations of the Solicitor General, preempting and interpreting the Presidents exercise of executive power
beyond the articulated purpose of E.O. No. 1, are not equivalent to the wrongful exercise by the President of
executive power.

Let me then close this dissertation with Marcos v. Manglapus 55 which trailblazed and redefined the extent of
judicial review on the powers of the co-equal branches of government, in particular, executive power:

Under the Constitution, judicial power includes the duty to "determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the party of any branch or instrumentality of
the Government." xxx

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond the Courts jurisdiction the determination
which is exclusively for the President, for Congress or for the people themselves through a plebiscite or
referendum. We cannot, for example, question the Presidents recognition of a foreign government, no matter
how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may
appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under
the guise of resolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political question doctrine.
The deliberation of the Constitutional Commission cited by petitioners show that the framers intended to widen
the scope of judicial review but they did not intend courts of justice to settle all actual controversies before
them. When political questions are involved, the Constitution limits the determination to whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose
action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of
the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this
light, it would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine whether or not there has been a grave
abuse of discretion on the part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia that:

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of
habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our
system of government, the Executive is supreme within his own sphere. However, the separation of powers,
under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and
balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when
he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has
so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.

In the exercise of such authority, the function of the Court is merely to checknot to supplantthe Executive,
or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise
the power vested in him or to determine the wisdom of his act.

It is for the foregoing reasons that I vote to DISMISS the petitions.

CONCURRING OPINION
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LEONARDO-DE CASTRO, J.:

I concur in the result of the ponencia of Justice Jose Catral Mendoza and join the separate opinions of my
colleagues, Chief Justice Renato C. Corona, Justice Arturo D. Brion and Justice Jose Portugal Perez. I vote to
declare Executive Order No. 1 (EO No. 1) unconstitutional, as a well-intentioned, but ill-devised, presidential
issuance that transgresses the boundaries of executive power and responsibility set by the Constitution and our
laws.

While I agree with the majority consensus that equal protection is an issue that must be resolved in these
consolidated petitions, the weightier legal obstacles to the creation of the Philippine Truth Commission (the
Commission) by executive order deserve greater attention in this discussion.

If the Commission created by EO No. 1 were a living person, it would be suffering from the most acute identity
crisis. Is it an independent body? Is it a mere ad hoc fact-finding body under the control of the President? And
in either case, what legal repercussion does its creation have on our constitutionally and statutorily developed
system for investigating and prosecuting graft and corruption cases?

Indeed, from the answers to these questions, it becomes evident that those who have designed this constitutional
anomaly designated as a "truth commission" have painted themselves into a legal corner with no escape.

If the Commission is an office independent of the President, then its creation by executive fiat is
unconstitutional.

The concept of a "truth commission" in other jurisdictions has a primordial characteristic independence. As a
body created to investigate and report on the "truth" of historical events (ordinarily involving State violations of
human rights en masse) in a country in transition from an authoritarian regime to a democratic one or from a
conflict situation to one of peace, the freedom of the members of the truth commission from any form of
influence is paramount to ensure the credibility of any findings it may make.

Thus, "truth commissions" have been described in this wise:

Truth commissions are non-judicial, independent panels of inquiry typically set up to establish the facts and
context of serious violations of human rights or of international humanitarian law in a countrys past.
Commissions members are usually empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way
for prosecutions and recommend institutional reforms. Most commissions focus on victims needs as a path
toward reconciliation and reducing conflict about what occurred in the past.1 (Emphases supplied.)

Notably, the Office of the United Nations High Commissioner for Human Rights likewise lists operational
independence as one of the core principles in the establishment of a truth commission:

The legitimacy and public confidence that are essential for a successful truth commission process depend on the
commissions ability to carry out its work without political interference. Once established, the commission
should operate free of direct influence or control by the Government, including in its research and
investigations, budgetary decision-making, and in its report and recommendations. Where financial oversight is
needed, operational independence should be preserved. Political authorities should give clear signals that the
commission will be operating independently.2 (Emphases supplied.)

With due respect, I disagree with Justice Antonio T. Carpios opinion that the naming of the body created by
EO No. 1 as the "Philippine Truth Commission" was a mere attempt to be novel, to depart from the tired and
235
repetitious scheme of naming a commission after its appointed head/leader or of calling it a "fact-finding" body.
Obviously, the title given to the Commission is meant to convey the message that it is independent of the Office
of the President.

Those who dissent from the majority position gloss over the fact that EO No. 1 itself expressly states that the
Commissions members shall "act as an independent collegial body." 3 During oral arguments, the Solicitor
General confirmed that what EO No. 1 intended is for the Commission to be an independent body over which
the President has no power of control.4 The Solicitor General further claimed that one of the functions of the
Commission is "truth-telling." Verily, the creation of the Philippine Truth Commission and its naming as such
were done as a deliberate reference to the tradition of independent truth commissions as they are conceived in
international law, albeit adapted to a particular factual situation in this jurisdiction.

If this Philippine Truth Commission is an office independent of the President and not subject to the latters
control and supervision, then the creation of the Commission must be done by legislative action and not by
executive order. It is undisputed that under our constitutional framework only Congress has the power to create
public offices and grant to them such functions and powers as may be necessary to fulfill their purpose. Even in
the international sphere, the creation of the more familiar truth commissions has been done by an act of
legislature.5

Neither can the creation of the Commission be justified as an exercise of the delegated legislative authority of
the President to reorganize his office and the executive department under Section 31, Chapter 10, Title III, Book
III of the Administrative Code of 1987. The acts of reorganization authorized under said provision are limited to
the following:

SEC. 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the Office of the President. For this purpose, he may
take any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well
astransfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well
as transfer agencies to the Office of the President from other Departments or Agencies. (Emphases
supplied.)

There is nothing in EO No. 1 that indicates that the Commission is a part of the executive department or of the
Office of the President Proper. Indeed, it is Justice Carpio who suggests that the President may appoint the
commissioners of the Philippine Truth Commission as presidential special assistants or advisers in order that the
Commission be subsumed in the Office of the President Proper and to clearly place EO No. 1 within the ambit
of Section 31. To my mind, the fact that the commissioners are proposed to be appointed as presidential
advisers is an indication that the Philippine Truth Commission was initially planned to be independent of the
President and the subsequent appointment of the commissioners as presidential advisers will be merely curative
of the patent defect in the creation of the Commission by an Executive Order, as an independent body.

I agree with Justice Brion that what EO No. 1 sought to accomplish was not a mere reorganization under the
delegated legislative authority of the President. The creation of the Philippine Truth Commission did not
236
involve any restructuring of the Office of the President Proper nor the transfer of any function or office from the
Office of the President to the various executive departments and vice-versa. The Commission is an entirely new
specie of public office which, as discussed in the concurring opinions, is not exercising inherently executive
powers or functions but infringing on functions reserved by the Constitution and our laws to other offices.

If the Commission is under the control and supervision of the President, and not an independent body, the
danger that the Commission may be used for partisan political ends is real and not imagined.

For the sake of argument, let us accept for the moment the propositions of our dissenting colleagues that:

(a) The Commission is not a separate public office independent of the President;

(b) The Commission is an executive body (or a part of the Office of the President Proper) that may be
created by the President through an executive order under Section 31; and

(c) The Commission is merely an ad hoc fact-finding body intended to apprise the President of facts that
will aid him in the fulfillment of his duty to ensure the faithful execution of the laws.

If the foregoing statements are true, then what EO No. 1 created is a body under the control and supervision of
the President. In fact, if the commissioners are to be considered special advisers to the President, the
Commission would be a body that serves at the pleasure of the President. Proponents who support the creation
of the Commission in the manner provided for under EO No. 1 should drop all arguments regarding the
purported independence and objectivity of the proceedings before it.

Indeed, EO No. 1 itself is replete with provisions that indicate that the existence and operations of the
Commission will be dependent on the Office of the President. Its budget shall be provided by the Office of the
President6 and therefore it has no fiscal autonomy. The reports of the Commission shall be published upon the
directive of the President.7 Further, if we follow the legal premises of our dissenting colleagues to their logical
conclusion, then the Commission as a body created by executive order may likewise be abolished (if it is part of
the Presidential Special Assistants/Advisers System of the Office of the President Proper) or restructured by
executive order. EO No. 1 may be amended, modified, and repealed all by executive order. More importantly, if
the Commission is subject to the power of control of the President, he may reverse, revise or modify the actions
of the Commission or even substitute his own decision for that of the Commission.

Whether by name or by nature, the Philippine Truth Commission cannot be deemed politically "neutral" so as to
assure a completely impartial conduct of its purported fact-finding mandate. I further concur with Chief Justice
Corona that attempts to "sugar coat" the Philippine Truth Commissions functions as "harmless" deserve no
credence.

The purported functions to be served by the Commission, as the concurring opinions vividly illustrate, will
subvert the functions of the Ombudsman and the constitutional and statutory developed criminal justice system.

First, it is apparent on the face of EO No. 1 that in general "it is primarily tasked to conduct a thorough fact-
finding investigation of reported cases of graft and corruption [of such scale and magnitude that shock and
offend the moral and ethical sensibilities of the people], involving third level public officers and higher, their
co-principals, accomplices and accessories from the private sector, if any, during the previous
administration."8 I agree with the Chief Justices proposition that there is no law authorizing the President to
create a body to investigate persons outside the executive department in relation to graft and corruption cases,
concurrently with the Office of the Ombudsman which has such express legal authority. Indeed, even in
jurisprudence, the instances when the power of the President to investigate and create ad hoc committees for

237
that purpose were upheld have been usually related to his power of control and discipline over his subordinates
or his power of supervision over local government units.

In Ganzon v. Kayanan,9 a case involving the investigation of a mayor, we held that the power of the President to
remove any official in the government service under the Revised Administrative Code and his constitutional
power of supervision over local governments were the bases for the power of the President to order an
investigation of any action or the conduct of any person in the government service, and to designate the official
committee, or person by whom such investigation shall be conducted.

In Larin v. Executive Secretary,10 where the petitioner subject of the investigation was an Assistant
Commissioner in the Bureau of Internal Revenue, we held that:

Being a presidential appointee, he comes under the direct disciplining authority of the President. This is in line
with the well settled principle that the "power to remove is inherent in the power to appoint" conferred to the
President by Section 16, Article VII of the Constitution. Thus, it is ineluctably clear that Memorandum Order
No. 164, which created a committee to investigate the administrative charge against petitioner, was issued
pursuant to the power of removal of the President. x x x.11 (Emphases supplied.)

In a similar vein, it was ruled in Joson v. Executive Secretary, 12 that:

The power of the President over administrative disciplinary cases against elective local officials is derived from
his power of general supervision over local governments. Section 4, Article X of the 1987 Constitution
provides:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces
with respect to component cities and municipalities, and cities and municipalities with respect to component
barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and
functions."

The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers
perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official may take such
action or step as prescribed by law to make them perform their duties. The President's power of general
supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate
officers act within the law. Supervision is not incompatible with discipline. And the power to discipline and
ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation
of the act or conduct of local officials when in his opinion the good of the public service so
requires.13 (Emphases ours.)

Still on the same point, Department of Health v. Camposano 14 likewise discussed that:

The Chief Executives power to create the Ad Hoc Investigating Committee cannot be doubted. Having been
constitutionally granted full control of the Executive Department, to which respondents belong, the President
has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO
298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that the former used the offices and facilities
of the latter in conducting the inquiry.15 (Emphases supplied.)

Second, the functions of the Commission, although ostensibly only recommendatory, are basically prosecutorial
in nature and not confined to objective fact finding. EO No. 1 empowers the Commission to, among others:

SECTION 2. x x x.
238
xxxx

(b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale corruption
which it has chosen to investigate, and to this end require any agency, official or employee of the Executive
Branch, including government-owned or controlled corporations, to produce documents, books, records and
other papers;

xxxx

(g) Turn over from time to time, for expeditious prosecution to the appropriate prosecutorial authorities, by
means of a special or interim report and recommendation, all evidence on corruption of public officers and
employees and their private sector co-principals, accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground to believe that they are liable for graft and
corruption under pertinent applicable laws. (Emphasis ours.)

I agree with Justice Perez that the aforementioned functions run counter to the very purpose for the creation of
the Office of the Ombudsman, to constitutionalize a politically independent office responsible for public
accountability as a response to the negative experience with presidential commissions. His discussion on the
constitutional history of the Office of the Ombudsman and the jurisprudential bases for its primary jurisdiction
over cases cognizable by the Sandiganbayan (i.e., specific offenses, including graft and corruption, committed
by public officials as provided for in Presidential Decree No. 1606, as amended) is apropos indeed.

I likewise find compelling Justice Brions presentation regarding the Commissions "truth-telling" functions
potential implications on due process rights and the right to a fair trial and the likelihood of duplication of, or
interference with, the investigatory or adjudicatory functions of the Ombudsman and the courts. I need not
repeat Justice Brions comprehensive and lucid discussion here. However, I do find it fitting to echo here
former Chief Justice Claudio Teehankee, Sr.s dissenting opinion in Evangelista v. Jarencio, 16 the oft-cited
authority for the Presidents power to investigate, where he stated that:

The thrust of all this is that the State with its overwhelming and vast powers and resources can and must ferret
out and investigate wrongdoing, graft and corruption and at the same time respect the constitutional guarantees
of the individual's right to privacy, silence and due process and against self-incrimination and unreasonable
search and seizure. x x x.17 (Emphases ours.)

The constitutional mandate for public accountability and the present administrations noble purpose to curb
graft and corruption simply cannot justify trivializing individual rights equally protected under the Constitution.
This Court cannot place its stamp of approval on executive action that is constitutionally abhorrent even if for a
laudable objective, and even if done by a President who has the support of popular opinion on his side. For the
decisions of the Court to have value as precedent, we cannot decide cases on the basis of personalities nor on
something as fickle and fleeting as public sentiment. It is worth repeating that our duty as a Court is to uphold
the rule of law and not the rule of men.

Concluding Statement

Section 1, Article VIII of the 1987 Constitution provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

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Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and 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 the Government.

Undeniably, from the foregoing, judicial review is not only a power but a constitutional duty of the courts. The
framers of our Constitution found an imperative need to provide for an expanded scope of review in favor of the
"non-political" courts as a vital check against possible abuses by the political branches of government. For this
reason, I cannot subscribe to Justice Maria Lourdes Serenos view that the Courts exercise of its review power
in this instance is tantamount to supplanting the will of the electorate. A philosophical view that the exercise of
such power by the Judiciary may from a certain perspective be "undemocratic" is not legal authority for this
Court to abdicate its role and duty under the Constitution. It also ignores the fact that it is the people by the
ratification of the Constitution who has given this power and duty of review to the Judiciary.

The insinuations that the members of the majority are impelled by improper motives, being countermajoritarian
and allowing graft and corruption to proliferate with impunity are utterly baseless. Not only are these sort of ad
hominem attacks and populist appeals to emotion fallacious, they are essentially non-legal arguments that have
no place in a debate regarding constitutionality. At the end of the day, Justices of this Court must vote according
to their conscience and their honest belief of what the law is in a particular case. That is what gives us courage
to stand by our actions even in the face of the harshest criticism. Those who read our opinions, if they are truly
discerning, will be able to determine if we voted on points of law and if any one of us was merely pandering to
the appointing power.

Needless to say, this Court will fully support the present administrations initiatives on transparency and
accountability if implemented within the bounds of the Constitution and the laws that the President professes he
wishes to faithfully execute. Unfortunately, in this instance, EO No. 1 fails this ultimate legal litmus test.

SEPARATE CONCURRING OPINION

PERALTA, J.:

On July 30, 2010, President Benigno Simeon C. Aquino III issued Executive Order (E.O.) No. 1 creating the
Philippine Truth Commission of 2010 (Truth Commission), which is "primarily tasked to conduct a thorough
fact-finding investigation of reported cases of graft and corruption x x x involving third level public officers and
higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its findings and recommendations to the President, Congress and the
Ombudsman."

Petitioners filed their respective petitions questioning the constitutionality of E.O. No. 1. In G.R. No. 193036,
petitioners, as members of the House of Representatives, have legal standing to impugn the validity of E.O. No.
1, since they claim that E.O. No. 1 infringes upon their prerogatives as legislators. 1 In G.R. No. 192935,
petitioner, who filed his petition as a taxpayer, may also be accorded standing to sue, considering that the issues
raised are of transcendental importance to the public. 2 The people await the outcome of the Presidents effort to
implement his pledge to find out the truth and provide closure to the reported cases of graft and corruption
during the previous administration. The constitutional issues raised by petitioners seek the determination of
whether or not the creation of the Truth Commission is a valid exercise by the President of his executive power.

Petitioners contend that E.O. No. 1 is unconstitutional, because only Congress may create a public office,
pursuant to Section 1, Article VI of the Constitution.3

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Respondents, through the Office of the Solicitor General (OSG), counter that the issuance of E.O. No. 1 is
mainly supported by Section 17, Article VII of the Constitution, 4 Section 31, Title III, Book III of E.O. No. 292,
and Presidential Decree (P.D.) No. 1416, as amended by P.D. No. 1772.

Quoted in E.O. No. 1 as the legal basis for its creation is Section 31, Title III, Book III of E.O. No. 292,
otherwise known as the Revised Administrative Code of 1987, which provides:

SEC. 31. Continuing Authority of the President to Reorganize his Office. The President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments and agencies.

In Bagaoisan v. National Tobacco Administration,5 the Court held that the first sentence of the law is an express
grant to the President of a continuing authority to reorganize the administrative structure of the Office of the
President. Section 31(1) of Executive Order No. 292 specifically refers to the Presidents power to restructure
the internal organization of the Office of the President Proper, by abolishing, consolidating or merging units
thereof or transferring functions from one unit to another. 6 Section 31(2) and (3) concern executive offices
outside the Office of the President Proper allowing the President to transfer any function under the Office of the
President to any other department or agency and vice-versa, and the transfer of any agency under the Office of
the President to any other department or agency and vice-versa.7

Thus, the reorganization in Section 31 involves abolishing, consolidating or merging units in the Office of the
President Proper or transferring functions from one unit to another in the Office of the President Proper, and the
transfer of any function or any agency under the Office of the President to any other department or agency and
vice-versa. Nowhere is it stated that the President can create an office like the Truth Commission, which does
not result from any reorganization under Section 31. Hence, the said section cannot be used to justify the
creation of the Truth Commission.

Moreover, in its Comment, the OSG stated that one of the bases for the creation of E.O. No. 1 is P.D. No. 1416,
as amended by P.D. No. 1772, which amendment was enacted by President Ferdinand E. Marcos on January 15,
1981.

P.D. No. 1416, as amended, is inapplicable as basis in the creation of the Truth Commission, since it was
intended by President Ferdinand E. Marcos to promote efficiency and flexibility in the organization of the
national government to strengthen the government bureaucracy when the government was in the transition from
presidential to the parliamentary form of government. This is evident in the preamble of P.D. No. 1416, 8 which
states:

WHEREAS, the transition toward the parliamentary form of government will necessitate flexibility in the
organization of the national government; x x x9

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The OSG admitted during the oral argument 10 that the 1987 Constitution ended the power of the President to
reorganize the national government. It is noted that President Ferdinand E. Marcos exercised legislative power
concurrently with the interim Batasang Pambansa (1976) and, subsequently, with the regular Batasang
Pambansa (1984).11 After the February 1986 revolution, President Corazon C. Aquino assumed revolutionary
legislative power, and issued Proclamation No. 3, the Provisional Freedom Constitution. Section 3, Article I of
Proclamation No. 3 abolished the Batasang Pambansa, while Section 1, Article II of the said Proclamation
vested legislative power in the President until a legislature would be elected and convened under a new
Constitution. Thus, Section 6, Article XVIII (Transitory Provisions) of the 1987 Constitution provides that
"[t]he incumbent President (President Corazon Aquino) shall continue to exercise legislative powers until the
first Congress is convened."12

In view of the foregoing, the decision in Larin v. Executive Secretary13 insofar as P.D. No. 1416, as amended by
P.D. No. 1772, is cited as a law granting the President the power to reorganize, needs to be re-examined.

Assuming that P.D. No. 1416, as amended, is still a valid law, it cannot be the basis of the creation of the Truth
Commission, because all the cases, from Larin v. Executive Secretary; 14 Buklod ng Kawaning EIIB v.
Zamora;15Secretary of the Department of Transportation and Communications v. Mabalot; 16 Bagaoisan v.
National Tobacco Administration;17 Department of Environment and Natural Resources v. DENR Region 12
Employees;18 Tondo Medical Center Employees Association v. Court of Appeals; 19 Malaria Employees and
Workers Association of the Philippines, Inc. (MEWAP) v. Romulo20 to Banda v. Ermita,21 which cited P.D. No.
1416, as amended, as a basis to reorganize, involved reorganization or streamlining of an agency of the
Executive Department. However, the Truth Commission was not created for streamlining purposes.

The purpose of reorganization under P.D. No. 1416, as amended by P.D. No. 1772, is to "promote simplicity,
economy and efficiency in the government to enable it to pursue programs consistent with national goals for
accelerated social and economic development, and to improve upon the services of the government in the
transaction of the public business."

The creation of the Truth Commission, however, is not to promote simplicity, economy and efficiency in the
government. The Truth Commission is primarily tasked to conduct fact-finding investigation of reported cases
of graft and corruption involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration of President Gloria Macapagal-
Arroyo, which separate investigative body, as stated in the preamble, "will recommend the prosecution of the
offenders and secure justice for all." It is, in part, the implementation of the pledge of President Benigno
Aquino, Jr. during the last election that if elected, he would end corruption and the evil it breeds.

In its Memorandum, the OSG justifies the power of the President to create the Truth Commission based on his
authority to create ad hoc fact-finding committees or offices within the Office of the President, which authority
is described as an adjunct of his plenary executive power under Section 1 and his power of control under
Section 17, both of Article VII of the Constitution. 22 It cited the case of Department of Health v.
Camposano,23 which held:

The Chief Executives power to create the Ad Hoc Investigating Committee cannot be doubted. Having been
constitutionally granted full control of the Executive Department, to which respondents belong, the President
has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO
298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that the former used the offices and facilities
of the latter in conducting the inquiry.

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To clarify, the power of control is "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the former for
that of the latter;"24 hence, it cannot be the basis of creating the Truth Commission.

The ponencia justifies the creation of the Truth Commission based on the Presidents duty to ensure that the
laws be faithfully executed under Section 17, Article VII of the Constitution, thus:

Sec. 17. The President shall have control of all executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed.25

According to the ponencia, to ascertain if laws are faithfully executed, the President has the power to create ad
hoc investigating committees, which power has been upheld in Department of Health v. Camposano. 26 In the
said case, some concerned employees of the Department of Health (DOH)-National Capital Region (NCR) filed
a complaint before the DOH Resident against certain officers of the DOH arising from alleged anomalous
purchase of medicines. The Resident Ombudsman submitted an investigation report to the Secretary of Health
recommending the filing of a formal administrative charge of Dishonesty and Grave Misconduct against the
respondents. Subsequently, the Secretary of Health filed a formal charge against the respondents for Grave
Misconduct, Dishonesty, and Violation of Republic Act No. 3019. Thereafter, the Executive Secretary issued
Administrative Order No. 298, creating an ad hoc committee to investigate the administrative case filed against
the DOH-NCR employees. The said Administrative Order was indorsed to the Presidential Commission Against
Graft and Corruption (PCAGC), which found the respondents guilty as charged and recommended their
dismissal from the government. However, the Court overturned the dismissal of respondents by the Secretary of
DOH, because respondents were denied due process, but it declared valid the creation of the ad hoc committee,
thus:

x x x The investigation was authorized under Administrative Order No. 298 dated October 25, 1996, which had
created an Ad Hoc Committee to look into the administrative charges filed against Director Rosalinda U.
Majarais, Priscilla G. Camposano, Horacio D. Cabrera, Imelda Q. Agustin and Enrique L. Perez.

The Investigating Committee was composed of all the members of the PCAGC: Chairman Eufemio C.
Domingo, Commissioner Dario C. Rama and Commissioner Jaime L. Guerrero. The Committee was directed by
AO 298 to "follow the procedure prescribed under Section 38 to 40 of the Civil Service Law (PD 807), as
amended." It was tasked to "forward to the Disciplining Authority the entire records of the case, together with
its findings and recommendations, as well as the draft decision for the approval of the President."

The Chief Executives power to create the Ad Hoc Investigating Committee cannot be doubted. Having been
constitutionally granted full control of the Executive Department, to which respondents belong, the President
has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO
298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that the former used the offices and facilities
of the latter in conducting the inquiry.27

The ponencia stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow inquiry into
matters which the President is entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the laws of the land. The ponencia stated
that this was also the objective of investigative bodies created in the past like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and the Zenarosa Commission. Hence, the ponencia held that the
Presidents power to create investigative bodies cannot be denied.

Albeit the President has the power to create ad hoc committees to investigate or inquire into matters for the
guidance of the President to ensure that the laws be faithfully executed, I am of the view that the Truth
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Commission was not created in the nature of the aforementioned ad hoc investigating/fact-finding bodies. The
Truth Commission was created more in the nature of a public office.

Based on the creation of ad hoc investigating bodies in Department of Health v. Camposano and Presidential Ad
Hoc Fact-Finding Committee on Behest Loans v. Desierto, 28 the members of an ad hoc investigative body are
heads and representatives of existing government offices, depending on the nature of the subject matter of the
investigation. The ad hoc investigating bodys functions are primarily fact-finding/investigative and
recommendatory in nature.29

In this case, the members of the Truth Commission are not officials from existing government offices.
Moreover, the Truth Commission has been granted powers of an independent office as follows:

1. Engage or contract the services of resource persons, professionals and other personnel determined by
it as necessary to carry out its mandate; 30

2. Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence. 31

3. The Truth Commission shall have the power to engage the services of experts as consultants or
advisers as it may deem necessary to accomplish its mission. 32

In addition, the Truth Commission has coercive powers such as the power to subpoena witnesses. 33 Any
government official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to take oath or affirmation, give testimony or
produce documents for inspection, when required, shall be subject to administrative disciplinary action. 34 Any
private person who does the same may be dealt with in accordance with law. 35 Apparently, the grant of such
powers to the Truth Commission is no longer part of the executive power of the President, as it is part of law-
making, which legislative power is vested in Congress. 36 There are only two instances in the Constitution
wherein Congress may delegate its law-making authority to the President:37

Article VI, Section 23. (1) The Congress, by a vote of two-thirds of both houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out
a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.

Article VI, Sec. 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation.

(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues,
and other duties or imposts within the framework of the national development program of the government. 38

Although the President may create investigating bodies to help him in his duty to ensure that the laws are
faithfully executed, he cannot be allowed to encroach on or usurp the law-making power of the Legislature in
the creation of such investigative bodies.

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Moreover, the Truth Commissions function is questioned on the ground that it duplicates, if not supersedes, the
function of the Office of the Ombudsman. The OSG avers that the Ombudsmans power to investigate is not
exclusive, but is shared with other similarly authorized agencies, citing Ombudsman v. Galicia.39

Based on Section 2 of E.O. No. 1, the powers and functions of the Truth Commission do not supplant the
powers and functions of the Ombudsman.40 Nevertheless, what is the use of the Truth Commission if its power
is merely recommendatory? Any finding of graft and corruption by the Truth Commission is still subject to
evaluation by the Office of the Ombudsman, as it is only the Office of the Ombudsman that is empowered to
conduct preliminary investigation, determine the existence of probable cause and prosecute the case. Hence, the
creation of the Truth Commission will merely be a waste of money, since it duplicates the function of the Office
of the Ombudsman to investigate reported cases of graft and corruption.

Further, E.O. No. 1 violates that equal protection clause enshrined in the Constitution. The guarantee of equal
protection of the laws means that no person or class of persons shall be denied the same protection of laws
which is enjoyed by other persons or other classes in like circumstances. 41

In this case, investigation by the Truth Commission covers only third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any, during the previous administration of
former President Gloria Macapagal-Arroyo.42

The OSG, however, counters in its Memorandum that the equal protection clause of the Constitution is not
violated, because although E.O. No. 1 names the previous administration as the initial subject of the
investigation of cases of graft and corruption, it is not confined to the said administration, since E.O. No. 1
clearly speaks of the Presidents power to expand its coverage to prior administrations as follows:

need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order. 43

As provided above, the mandate of the Truth Commission may be expanded to include the investigation of
cases of graft and corruption during prior administrations, but it is subject to the "judgment" or discretion of the
President and it may be so extended by way of a supplemental Executive Order. In the absence of the exercise
of judgment by the President that the Truth Commission shall also conduct investigation of reported cases of
graft and corruption during prior administrations, and in the absence of the issuance of a supplemental executive
order to that effect, E.O. No. 1 covers only third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during the previous administration of former
President Gloria Macapagal-Arroyo. This is admitted by the OSG in its Memorandum 44 as it explains that "to
include the past administrations, at this point, may unnecessarily overburden the Commission and lead it to lose
its effectiveness." The OSGs position shows more consideration for the burden that the investigation may
cause to the Commission, while losing sight of the equal protection clause of the Constitution.

The OSG further states that even if the Truth Commission would solely concern itself with graft and corruption,
if there be any, of the previous administration, there is still no violation of the equal protection clause. It submits
that the segregation of the transactions of public officers during the previous administration as possible subjects
of investigation is a valid classification based on substantial distinctions and is germane to the evils which the
E.O. seeks to correct. The distinctions cited are:

1) E.O No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions.

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 2) The segregation of the preceding administration as the object of fact-finding investigations is
warranted by the reality that the current administration will most likely bear the immediate
consequences of the policies of the previous administration, unlike those of the administrations long
gone.

3) The classification of the previous administration as a separate class for investigation lies in the reality
that the evidence of possible criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully
executed, are more easily established in the regime that immediately precedes the current administration.

4) Many administrations subject the transactions of their predecessors to investigations to provide

closure to issues that are pivotal to national life or even as a routine measure of due diligence and good
housekeeping by a nascent administration.

Indeed, the equal protection clause of the Constitution allows classification. 45 If the classification is reasonable,
the law may operate only on some and not all of the people without violating the equal protection clause. 46 To
be valid, it must conform to the following requirements: (1) It must be based on substantial distinctions; (2) it
must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it
must apply equally to all members of the class.47

Peralta v. Commission on Elections 48 held:

The equal protection clause does not forbid all legal classifications. What [it] proscribes is a classification
which is arbitrary and unreasonable. It is not violated by a reasonable classification based upon substantial
distinctions, where the classification is germane to the purpose of the law and applies equally to all those
belonging to the same class. The equal protection clause is not infringed by legislation which applies only to
those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within the class and those who do not. There is,
of course, no concise or easy answer as to what an arbitrary classification is. No definite rule has been or can be
laid down on the basis of which such question may be resolved. The determination must be made in accordance
with the facts presented by the particular case. The general rule, which is well-settled by the authorities, is that a
classification, to be valid, must rest upon material differences between the persons, activities or things included
and those excluded. There must, in other words, be a basis for distinction. Furthermore, such classification must
be germane and pertinent to the purpose of the law. And, finally, the basis of classification must, in general, be
so drawn that those who stand in substantially the same position with respect to the law are treated alike.

The distinctions cited by the OSG are not substantial to separate the previous administration as a distinct class
from prior administrations as subject matter for investigation for the purpose of ending graft and corruption. As
stated by the ponencia, the reports of widespread corruption in the previous administration cannot be taken as a
substantial distinction, since similar reports have been made in earlier administrations.

Moreover, a valid classification must rest upon material differences between the persons, or activities or thing
included and excluded.49 Reasonable grounds must exist for making a distinction between those who fall within
the class and those who do not.50 There is no substantial distinction cited between public officers who may be
involved in reported cases of graft and corruption during the previous administration and public officers who
may be involved in reported cases of graft and corruption during prior administrations in relation to the purpose
of ending graft and corruption. To limit the investigation to public officers of the previous administration is
violative of the equal protection clause.

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I vote, therefore, to GRANT the petitions as Executive Order No. 1 is unconstitutional since it violates the equal
protection clause of the Constitution and encroaches on the law-making power of Congress under Section 1,
Article VI of the Constitution.

SEPARATE
DISSENTING OPINION

ABAD, J.:

Brief Background

As the opinion written for the majority by Justice Jose Catral Mendoza says, President Benigno Simeon Aquino
III (President P-Noy to distinguish him from former President Corazon C. Aquino) campaigned on a platform of
"kung walang corrupt, walang mahirap." On being elected President, he issued Executive Order 1, 1 creating the
Philippine Truth Commission of 2010 that he tasked with the investigation of reported corruption during the
previous administration. The Truth Commission is to submit its findings and recommendations to the President,
the Congress, and the Ombudsman.

Petitioners Louis Biraogo, Rep. Edcel C. Lagman, Rep. Rodolfo B. Albano, Jr., Rep. Simeon A. Datumanong,
and Rep. Orlando B. Fua, Sr. have come to this Court to challenge the Constitutionality of Executive Order 1.

The Issues Presented

The parties present four issues:

1. Whether or not petitioners have legal standing to challenge the constitutionality of Executive Order 1;

2. Whether or not Executive Order 1 usurps the authority of Congress to create and appropriate funds for
public offices, agencies, and commissions;

3. Whether or not Executive Order 1 supplants the powers of the Ombudsman and the DOJ; and

4. Whether or not Executive Order 1 violates the equal protection clause in that it singles out the
previous administration for investigation.

Discussion

The majority holds that petitioners have standing before the Court; that President P-Noy has the power to create
the Truth Commission; that he has not usurped the powers of Congress to create public offices and appropriate
funds for them; and, finally, that the Truth Commission can conduct investigation without supplanting the
powers of the Ombudsman and the Department of Justice since the Commission has not been vested with quasi-
judicial powers. I fully conform to these rulings.

The majority holds, however, that Executive Order 1 violates the equal protection clause of the Constitution. It
is here that I register my dissent.

The 1987 Constitution provides in section 1 of Article III (The Bill of Rights) as follows:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.

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The idea behind the "equal protection clause" is that public authorities should treat all persons or things equally
in terms of rights granted to and responsibilities imposed on them. As an element of due process, the equal
protection clause bars arbitrary discrimination in favor of or against a class whether in what the law provides
and how it is enforced.

Take the comic example of a law that requires married women to wear their wedding rings at all times to warn
other men not to entice women to violate their marriage vows. Such law would be unfair and discriminatory
since married men, who are not covered by it, are exposed to similar enticements from women other than their
wives.

But it would be just as unfair and discriminatory if people who hardly share anything in common are grouped
together and treated similarly.2 The equal protection clause is not violated by a law that applies only to persons
falling within a specified class, if such law applies equally to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within it and those who do not. 3

For example, restaurant cooks and waiters cannot complain of discrimination against an ordinance that requires
them but not other workers to undergo periodic medical check-ups. Such check-ups are important for food-
handlers in the interest of public health but not for ordinary office clerks. Also, a law that grants a 60-day paid
leave to pregnant workers but not to other workers, male or female, is not discriminatory since female workers
who just had their babies need more time to care for the latter and make adjustments for going back to work.

Here, the issue I address is whether or not President P-Noys decision to focus the Truth Commissions
investigation solely on the reported corruption during the previous administration, implicitly excluding the
corruption during the administrations before it, violates the equal protection clause. Since absolute equality in
treating matters is not required, the ultimate issue in this case is whether or not the President has reasonable
grounds for making a distinction between corruptions committed in the recent past and those committed in the
remote past. As a rule, his grounds for making a distinction would be deemed reasonable if they are germane or
relevant to the purpose for which he created the Truth Commission. 4

And what is the Presidents purpose in creating the Truth Commission? This can be inferred from section 1 of
Executive Order 1 which states that the Commissions primary function is to

xxx seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officials
and employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration, and thereafter recommend the appropriate action to be taken thereon to ensure that the
full measure of justice shall be served without fear or favor.

Evidently, the objective the President sets for the Truth Commission is the uncovering of the "truth" regarding
reported corruption in the previous administration "to ensure that the full measure of justice [evidently upon
those responsible for it] is served without fear or favor." Ultimately, the purpose of the creation of the Truth
Commission is to ensure that the corrupt officials of the previous administration are exposed and brought to
justice.

The majority holds that picking on the "previous administration" and not the others before it makes the
Commissions investigation an "adventure in partisan hostility." To be fair, said the majority, the search for
truth must include corrupt acts not only during the previous administration but also during the administrations
before it where the "same magnitude of controversies and anomalies" has been reported.

The majority points out that corruption in the previous administration and corruption in the administrations
before it have no substantial difference. And what difference they have, the majority adds, is not relevant to the
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purpose of Executive Order 1, which is to uncover corrupt acts and recommend their punishment. Superficial
difference like the difference in time in this case does not make for a valid classification.

But time differentiation should not be so easily dismissed as superficial. The world in which people live has two
great dimensions: the dimension of space and the dimension of time. Nobody can say that the difference in time
between two acts or events makes for a superficial difference. Such difference is the substance of human
existence. As the Bible says:

There is an appointed time for everything, and a time for every affair under the heavens.

A time to be born, and a time to die;

a time to plant, and a time to uproot the plant.
A time to kill, and a time to heal;
a time to tear down, and a time to build.
A time to weep, and a time to laugh;
a time to mourn, and a time to dance;
A time to scatter stones, and a time to gather them;
a time to embrace, and a time to be far from embraces.
A time to seek, and a time to lose;
a time to keep, and a time to cast away;
A time to rend, and a time to sew;
a time to be silent and a time to speak.
A time to love, and a time to hate;
a time of war, and a time of peace.

(Ecclesiastes 3:1-8, New American Bible)

Recognizing the irreversibility of time is indispensable to every sound decision that people make in their lives
everyday, like not combing the hair that is no longer there. In time, parents let their married children leave to
make their own homes. Also, when a loved one passes away, he who is left must know that he cannot bring
back the time that is gone. He is wise to move on with his life after some period of mourning. To deny the truth
that the difference in time makes for substantial difference in human lives is to deny the idea of transition from
growth to decay, from life to death, and from relevant to irrelevant.

Here the past presidential administrations the country has gone through in modern history cover a period of 75
years, going back from when President Gloria Macapagal Arroyo ended her term in 2010 to the time President
Manuel L. Quezon began his term in 1935. The period could even go back 111 years if the administration of
President Emilio Aguinaldo from 1989 to 1901 is included. But, so as not to complicate matters, the latters
administration might just as well be excluded from this discussion.

It should be remembered that the right of the State to recover properties unlawfully acquired by public officials
does not prescribe.5 So, if the majoritys advice were to be literally adopted, the Truth Commissions
investigation to be fair to all should go back 75 years to include the administrations of former Presidents
Arroyo, Estrada, Ramos, Aquino, Marcos, Macapagal, Garcia, Magsaysay, Quirino, Roxas, Osmena, Laurel,
and Quezon.

As it happens, President P-Noy limited the Truth Commissions investigation to the 9 years of the previous
administration. He did not include the 66 years of the 12 other administrations before it. The question, as
already stated, is whether the distinction between the recent past and the remote past makes for a substantial
difference that is relevant to the purpose of Executive Order 1.

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That the distinction makes for a substantial difference is the first point in this dissent.

1. The Right to Equal Protection

Feasibility of success. Time erodes the evidence of the past. The likelihood of finding evidence needed for
conviction diminishes with the march of time. Witnesses, like everyone else, have short memories. And they
become scarce, working overseas, migrating, changing addresses, or just passing away. Official or private
documents needed as evidence are easily overwhelmed by the demand to file and keep even more documents
generated by new activities and transactions. Thus, old documents are stored away in basements, garages, or
corridors, and eventually lost track of, misplaced, or simply destroyed, whether intentionally or not. In a
government that is notorious for throwing away or mishandling old records, searching for a piece of document
after ten years would be uncertain, tedious, long, and costly.

When the government of President Marcos fell in 1986, the new government acted swiftly to sequester
suspected wealth, impound documents believed to constitute evidence of wrong-doing, and interview witnesses
who could help prosecute the Marcoses and their cronies. One would think that these actions will ensure
successful prosecution of those who committed graft and corruption in that era. Yet, after just a decade, the
prosecution has been mostly unable to find the right documents or call the right witnesses. Today, after 24
years, the full force of government has failed to produce even one conviction.

Clearly, it would be a waste of effort and time to scour all of 66 years of the administrations before the last,
looking for evidence that would produce conviction. Time has blurred the chance of success. Limiting the Truth
Commissions investigation to the 9 years of the previous administration gives it the best chance of yielding the
required proof needed for successful action against the offenders.

Historically, there have been no known or outstanding inquiries done by the Executive Department into corrupt
acts of the past that went beyond the term of the immediately preceding administration. It makes sense for
President P-Noy to limit the investigation to what is practical and attainable, namely, the 9 years of the previous
administration. He strikes at what is here and near. Perchance, he can get a conviction. Investigating corruption
in the past 75 years rather than in the nearest 9 years, under a nebulous claim of evenhandedness, is the key to
failing altogether. It has been held that if the law presumably hits the evil where it is felt, it is not to be
overthrown because there are other instances to which it might have been applied. 6

Neutralization of Presidential bias. The Court can take judicial notice of the fact that President P-noy openly
attacked the previous administration for its alleged corruption in the course of his election campaign. In a sense,
he has developed a bias against it. Consequently, his creation of the Truth Commission, consisting of a former
Chief Justice, two former Associate Justices of the Supreme Court, and two law professors serves to neutralize
such bias and ensure fairness. The President did not have to include the 66 years of earlier administrations for
investigation since he did not specifically target them in his election campaign.

At any rate, it does not mean that when the President created the Truth Commission, he shut the door to the
investigation of corruption committed during the 66 years before the previous one. All existing government
agencies that are charged with unearthing crimes committed by public officials are not precluded from
following up leads and uncovering corruptions committed during the earlier years. Those corrupt officials of the
remote past have not gained immunity by reason of Executive Order 1.

Matching task to size. The Truth Commission is a collegial body of just five members with no budget or
permanent staffs of its own. It simply would not have the time and resources for examining hundreds if not
thousands of anomalous government contracts that may have been entered into in the past 75 years up to the
time of President Quezon. You cannot order five men to pull a train that a thousand men cannot move.

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Good housekeeping. Directing the investigation of reported corrupt acts committed during the previous
administration is, as the Solicitor General pointed out, consistent with good housekeeping. For example, a new
treasurer would be prudent to ensure that the former treasurer he succeeds has balanced his accounts and
submitted himself to a closing audit even after the new treasurer has taken over. This prevents the latter having
to unfairly assume the liabilities of his predecessor for shortages in the cash box. Of course, the new treasurer is
not required to look farther into the accounts of the earlier treasurers.

In like manner, it is reasonable for President P-Noy to cause the investigation of the anomalies reportedly
committed during the previous administration to which he succeeded. He has to locate government funds that
have not been accounted for. He has to stanch the bleeding that the government could be suffering even now by
reason of anomalous contracts that are still on-going. Such is a part of good housekeeping. It does not violate
the equal protection clause by its non-inclusion of the earlier administrations in its review. The latters dealings
is remotely relevant to good housekeeping that is intended to manage a smooth transition from one
administration to the next.

2. The Presidents Judgment

as against the Courts

That is the first point. The second point is that the Court needs to stand within the limits of its power to review
the actions of a co-equal branch, like those of the President, within the sphere of its constitutional authority.
Since, as the majority concedes, the creation of the Truth Commission is within the constitutional powers of
President P-Noy to undertake, then to him, not to the Court, belongs the discretion to define the limits of the
investigation as he deems fit. The Court cannot pit its judgment against the judgment of the President in such
matter.

And when can the Supreme Court interfere with the exercise of that discretion? The answer is, as provided in
Section 1, Article VIII of the 1987 Constitution, only when the President gravely abuses his exercise of such
discretion. This means that, in restricting the Truth Commissions investigation only to corruptions committed
during the previous administration, he acted capriciously and whimsically or in an arbitrary or despotic
manner.7

To act capriciously and whimsically is to act freakishly, abruptly, or erratically, like laughing one moment and
crying the next without apparent reason. Does this characterize the Presidents action in this case, considering
that he merely acted to set a feasible target, neutralize political bias, assign the Commission a task suitable to its
limited capacity, and observe correct housekeeping procedures? Did he act arbitrarily in the manner of little
children changing the rules of the game in the middle of the play or despotically in the manner of a dictator?
Unless he did, the Court must rein in its horses. It cannot itself exceed the limits of its power of review under
the Constitution.

Besides, the Court is not better placed than the President to make the decision he made. Unlike the President,
the Court does not have the full resources of the government available to it. It does not have all the information
and data it would need for deciding what objective is fair and viable for a five-member body like the Truth
Commission. Only when the Presidents actions are plainly irrational and arbitrary even to the man on the street
can the Court step in from Mount Olympus and stop such actions.

Notably, none of those who have been reported as involved in corruption in the previous administration have
come forward to complain that the creation of the Truth Commission has violated their rights to equal
protection. If they committed no wrong, and I believe many would fall in this category, they would probably
have an interest in pushing for the convening of the Commission. On the other hand, if they believe that the
investigation unfairly threatens their liberties, they can, if subpoenaed, to testify invoke their right to silence. As

251
stated in the majority opinion, the findings of the Commission would not bind them. Such findings would not
diminish their right to defend themselves at the appropriate time and forum.

For the above reasons, I join the main dissent of Justice Antonio T. Carpio.

EN BANC

[G.R. No. 132527. July 29, 2005]

COCONUT OIL REFINERS ASSOCIATION, INC. represented by its President, JESUS L. ARRANZA,
PHILIPPINE ASSOCIATION OF MEAT PROCESSORS, INC. (PAMPI), represented by its
Secretary, ROMEO G. HIDALGO, FEDERATION OF FREE FARMERS (FFF), represented by
its President, JEREMIAS U. MONTEMAYOR, and BUKLURAN NG MANGGAGAWANG
PILIPINO (BMP), represented by its Chairperson, FELIMON C. LAGMAN, petitioners, vs. HON.
RUBEN TORRES, in his capacity as Executive Secretary; BASES CONVERSION AND
DEVELOPMENT AUTHORITY, CLARK DEVELOPMENT CORPORATION, SUBIC BAY
METROPOLITAN AUTHORITY, 88 MART DUTY FREE, FREEPORT TRADERS, PX CLUB,
AMERICAN HARDWARE, ROYAL DUTY FREE SHOPS, INC., DFS SPORTS, ASIA
PACIFIC, MCI DUTY FREE DISTRIBUTOR CORP. (formerly MCI RESOURCES, CORP.),
PARK & SHOP, DUTY FREE COMMODITIES, L. FURNISHING, SHAMBURGH, SUBIC
DFS, ARGAN TRADING CORP., ASIPINE CORP., BEST BUY, INC., PX CLUB, CLARK
TRADING, DEMAGUS TRADING CORP., D.F.S. SPORTS UNLIMITED, INC., DUTY FREE
FIRST SUPERSTORE, INC., FREEPORT, JC MALL DUTY FREE INC. (formerly 88 Mart
[Clark] Duty Free Corp.), LILLY HILL CORP., MARSHALL, PUREGOLD DUTY FREE, INC.,
ROYAL DFS and ZAXXON PHILIPPINES, INC., respondents.

DECISION
AZCUNA, J.:

This is a Petition for Prohibition and Injunction seeking to enjoin and prohibit the Executive Branch,
through the public respondents Ruben Torres in his capacity as Executive Secretary, the Bases Conversion
Development Authority (BCDA), the Clark Development Corporation (CDC) and the Subic Bay Metropolitan
Authority (SBMA), from allowing, and the private respondents from continuing with, the operation of tax and
duty-free shops located at the Subic Special Economic Zone (SSEZ) and the Clark Special Economic Zone
(CSEZ), and to declare the following issuances as unconstitutional, illegal, and void:
1. Section 5 of Executive Order No. 80,[1] dated April 3, 1993, regarding the CSEZ.
2. Executive Order No. 97-A, dated June 19, 1993, pertaining to the SSEZ.
3. Section 4 of BCDA Board Resolution No. 93-05-034,[2] dated May 18, 1993, pertaining to the
CSEZ.
Petitioners contend that the aforecited issuances are unconstitutional and void as they constitute executive
lawmaking, and that they are contrary to Republic Act No. 7227 [3] and in violation of the Constitution,
particularly Section 1, Article III (equal protection clause), Section 19, Article XII (prohibition of unfair
competition and combinations in restraint of trade), and Section 12, Article XII (preferential use of Filipino
labor, domestic materials and locally produced goods).

252
 The facts are as follows:
On March 13, 1992, Republic Act No. 7227 was enacted, providing for, among other things, the sound and
balanced conversion of the Clark and Subic military reservations and their extensions into alternative productive
uses in the form of special economic zones in order to promote the economic and social development of Central
Luzon in particular and the country in general. Among the salient provisions are as follows:

SECTION 12. Subic Special Economic Zone.

...

The abovementioned zone shall be subject to the following policies:

(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent
provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-
sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and
around the zone and to attract and promote productive foreign investments;

(b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory
ensuring free flow or movement of goods and capital within, into and exported out of the Subic Special
Economic Zone, as well as provide incentives such as tax and duty-free importations of raw materials, capital
and equipment. However, exportation or removal of goods from the territory of the Subic Special Economic
Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs
and Tariff Code and other relevant tax laws of the Philippines;[4]

(c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and
national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%)
of the gross income earned by all businesses and enterprises within the Subic Special Ecoomic Zone shall be
remitted to the National Government, one percent (1%) each to the local government units affected by the
declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby
established a development fund of one percent (1%) of the gross income earned by all businesses and
enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside
the City of Olangapo and the Municipality of Subic, and other municipalities contiguous to the base areas.

...

SECTION 15. Clark and Other Special Economic Zones. Subject to the concurrence by resolution of the local
government units directly affected, the President is hereby authorized to create by executive proclamation a
Special Economic Zone covering the lands occupied by the Clark military reservations and its contiguous
extensions as embraced, covered and defined by the 1947 Military Bases Agreement between the Philippines
and the United States of America, as amended, located within the territorial jurisdiction of Angeles City,
Municipalities of Mabalacat and Porac, Province of Pampanga and the Municipality of Capas, Province of
Tarlac, in accordance with the policies as herein provided insofar as applicable to the Clark military
reservations.

The governing body of the Clark Special Economic Zone shall likewise be established by executive
proclamation with such powers and functions exercised by the Export Processing Zone Authority pursuant to
Presidential Decree No. 66 as amended.

253
The policies to govern and regulate the Clark Special Economic Zone shall be determined upon consultation
with the inhabitants of the local government units directly affected which shall be conducted within six (6)
months upon approval of this Act.

Similarly, subject to the concurrence by resolution of the local government units directly affected, the President
shall create other Special Economic Zones, in the base areas of Wallace Air Station in San Fernando, La Union
(excluding areas designated for communications, advance warning and radar requirements of the Philippine Air
Force to be determined by the Conversion Authority) and Camp John Hay in the City of Baguio.

Upon recommendation of the Conversion Authority, the President is likewise authorized to create Special
Economic Zones covering the Municipalities of Morong, Hermosa, Dinalupihan, Castillejos and San Marcelino.

On April 3, 1993, President Fidel V. Ramos issued Executive Order No. 80, which declared, among others,
that Clark shall have all the applicable incentives granted to the Subic Special Economic and Free Port Zone
under Republic Act No. 7227. The pertinent provision assailed therein is as follows:

SECTION 5. Investments Climate in the CSEZ. Pursuant to Section 5(m) and Section 15 of RA 7227, the
BCDA shall promulgate all necessary policies, rules and regulations governing the CSEZ, including investment
incentives, in consultation with the local government units and pertinent government departments for
implementation by the CDC.

Among others, the CSEZ shall have all the applicable incentives in the Subic Special Economic and Free Port
Zone under RA 7227 and those applicable incentives granted in the Export Processing Zones, the Omnibus
Investments Code of 1987, the Foreign Investments Act of 1991 and new investments laws which may
hereinafter be enacted.

The CSEZ Main Zone covering the Clark Air Base proper shall have all the aforecited investment incentives,
while the CSEZ Sub-Zone covering the rest of the CSEZ shall have limited incentives. The full incentives in the
Clark SEZ Main Zone and the limited incentives in the Clark SEZ Sub-Zone shall be determined by the BCDA.

Pursuant to the directive under Executive Order No. 80, the BCDA passed Board Resolution No. 93-05-034
on May 18, 1993, allowing the tax and duty-free sale at retail of consumer goods imported via Clark for
consumption outside the CSEZ. The assailed provisions of said resolution read, as follows:

Section 4. SPECIFIC INCENTIVES IN THE CSEZ MAIN ZONE. The CSEZ-registered enterprises/businesses
shall be entitled to all the incentives available under R.A. No. 7227, E.O. No. 226 and R.A. No. 7042 which
shall include, but not limited to, the following:

I. As in Subic Economic and Free Port Zone:

A. Customs:

...

4. Tax and duty-free purchase and consumption of goods/articles (duty free shopping) within the
CSEZ Main Zone.

5. For individuals, duty-free consumer goods may be brought out of the CSEZ Main Zone into the
Philippine Customs territory but not to exceed US$200.00 per month per CDC-registered
person, similar to the limits imposed in the Subic SEZ. This privilege shall be enjoyed only
once a month. Any excess shall be levied taxes and duties by the Bureau of Customs.
254
 On June 10, 1993, the President issued Executive Order No. 97, Clarifying the Tax and Duty Free Incentive
Within the Subic Special Economic Zone Pursuant to R.A. No. 7227. Said issuance in part states, thus:

SECTION 1. On Import Taxes and Duties Tax and duty-free importations shall apply only to raw materials,
capital goods and equipment brought in by business enterprises into the SSEZ. Except for these items,
importations of other goods into the SSEZ, whether by business enterprises or resident individuals, are subject
to taxes and duties under relevant Philippine laws.

The exportation or removal of tax and duty-free goods from the territory of the SSEZ to other parts of the
Philippine territory shall be subject to duties and taxes under relevant Philippine laws.

Nine days after, on June 19, 1993, Executive Order No. 97-A was issued, Further Clarifying the Tax and
Duty-Free Privilege Within the Subic Special Economic and Free Port Zone. The relevant provisions read, as
follows:

SECTION 1. The following guidelines shall govern the tax and duty-free privilege within the Secured Area of
the Subic Special Economic and Free Port Zone:

1.1 The Secured Area consisting of the presently fenced-in former Subic Naval Base shall be the only
completely tax and duty-free area in the SSEFPZ. Business enterprises and individuals (Filipinos and
foreigners) residing within the Secured Area are free to import raw materials, capital goods, equipment, and
consumer items tax and duty-free. Consumption items, however, must be consumed within the Secured Area.
Removal of raw materials, capital goods, equipment and consumer items out of the Secured Area for sale to
non-SSEFPZ registered enterprises shall be subject to the usual taxes and duties, except as may be provided
herein.

1.2. Residents of the SSEFPZ living outside the Secured Area can enter the Secured Area and consume any
quantity of consumption items in hotels and restaurants within the Secured Area. However, these residents can
purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not
exceeding US$100 per month per person. Only residents age 15 and over are entitled to this privilege.

1.3. Filipinos not residing within the SSEFPZ can enter the Secured Area and consume any quantity of
consumption items in hotels and restaurants within the Secured Area. However, they can purchase and bring out
[of] the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US$200 per
year per person. Only Filipinos age 15 and over are entitled to this privilege.

Petitioners assail the $100 monthly and $200 yearly tax-free shopping privileges granted by the aforecited
provisions respectively to SSEZ residents living outside the Secured Area of the SSEZ and to Filipinos aged 15
and over residing outside the SSEZ.
On February 23, 1998, petitioners thus filed the instant petition, seeking the declaration of nullity of the
assailed issuances on the following grounds:
I.

EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF
BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL AND VOID [FOR] BEING AN EXERCISE OF
EXECUTIVE LAWMAKING.

II.

255
EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF
BCDA BOARD RESOLUTION NO. 93-05-034 ARE UNCONSTITUTIONAL FOR BEING VIOLATIVE OF
THE EQUAL PROTECTION CLAUSE AND THE PROHIBITION AGAINST UNFAIR COMPETITION
AND PRACTICES IN RESTRAINT OF TRADE.

III.

EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF
BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL AND VOID [FOR] BEING VIOLATIVE OF
REPUBLIC ACT NO. 7227.

IV.

THE CONTINUED IMPLEMENTATION OF THE CHALLENGED ISSUANCES IF NOT RESTRAINED

WILL CONTINUE TO CAUSE PETITIONERS TO SUFFER GRAVE AND IRREPARABLE INJURY. [5]

In their Comments, respondents point out procedural issues, alleging lack of petitioners legal standing, the
unreasonable delay in the filing of the petition, laches, and the propriety of the remedy of prohibition.
Anent the claim on lack of legal standing, respondents argue that petitioners, being mere suppliers of the
local retailers operating outside the special economic zones, do not stand to suffer direct injury in the
enforcement of the issuances being assailed herein. Assuming this is true, this Court has nevertheless held that
in cases of paramount importance where serious constitutional questions are involved, the standing
requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the
party claiming the right of judicial review.[6]
In the same vein, with respect to the other alleged procedural flaws, even assuming the existence of such
defects, this Court, in the exercise of its discretion, brushes aside these technicalities and takes cognizance of
the petition considering the importance to the public of the present case and in keeping with the duty to
determine whether the other branches of the government have kept themselves within the limits of the
Constitution.[7]
Now, on the constitutional arguments raised:
As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate branch
of the Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-honored principle
that a statute is presumed to be valid.[8] This presumption is rooted in the doctrine of separation of powers which
enjoins upon the three coordinate departments of the Government a becoming courtesy for each others
acts.[9] Hence, to doubt is to sustain. The theory is that before the act was done or the law was enacted, earnest
studies were made by Congress, or the President, or both, to insure that the Constitution would not be
breached.[10] This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner
has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one.[11] In
other words, before a statute or a portion thereof may be declared unconstitutional, it must be shown that the
statute or issuance violates the Constitution clearly, palpably and plainly, and in such a manner as to leave no
doubt or hesitation in the mind of the Court.[12]

The Issue on Executive Legislation

Petitioners claim that the assailed issuances (Executive Order No. 97-A; Section 5 of Executive Order No.
80; and Section 4 of BCDA Board Resolution No. 93-05-034) constitute executive legislation, in violation of
the rule on separation of powers. Petitioners argue that the Executive Department, by allowing through the
256
questioned issuances the setting up of tax and duty-free shops and the removal of consumer goods and items
from the zones without payment of corresponding duties and taxes, arbitrarily provided additional exemptions
to the limitations imposed by Republic Act No. 7227, which limitations petitioners identify as follows:
(1) [Republic Act No. 7227] allowed only tax and duty-free importation of raw materials, capital and
equipment.
(2) It provides that any exportation or removal of goods from the territory of the Subic Special
Economic Zone to other parts of the Philippine territory shall be subject to customs duties and
taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines.
Anent the first alleged limitation, petitioners contend that the wording of Republic Act No. 7227 clearly
limits the grant of tax incentives to the importation of raw materials, capital and equipment only. Hence, they
claim that the assailed issuances constitute executive legislation for invalidly granting tax incentives in the
importation of consumer goods such as those being sold in the duty-free shops, in violation of the letter and
intent of Republic Act No. 7227.
A careful reading of Section 12 of Republic Act No. 7227, which pertains to the SSEZ, would show that it
does not restrict the duty-free importation only to raw materials, capital and equipment. Section 12 of the cited
law is partly reproduced, as follows:

SECTION 12. Subic Special Economic Zone.

...

The abovementioned zone shall be subject to the following policies:

...

(b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory
ensuring free flow or movement of goods and capital within, into and exported out of the Subic
Special Economic Zone, as well as provide incentives such as tax and duty-free importations of
raw materials, capital and equipment. However, exportation or removal of goods from the
territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be
subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws
of the Philippines.[13]
While it is true that Section 12 (b) of Republic Act No. 7227 mentions only raw materials, capital and
equipment, this does not necessarily mean that the tax and duty-free buying privilege is limited to these types of
articles to the exclusion of consumer goods. It must be remembered that in construing statutes, the proper
course is to start out and follow the true intent of the Legislature and to adopt that sense which harmonizes best
with the context and promotes in the fullest manner the policy and objects of the Legislature. [14]
In the present case, there appears to be no logic in following the narrow interpretation petitioners urge. To
limit the tax-free importation privilege of enterprises located inside the special economic zone only to raw
materials, capital and equipment clearly runs counter to the intention of the Legislature to create a free port
where the free flow of goods or capital within, into, and out of the zones is insured.
The phrase tax and duty-free importations of raw materials, capital and equipment was merely cited as an
example of incentives that may be given to entities operating within the zone. Public respondent SBMA
correctly argued that the maxim expressio unius est exclusio alterius, on which petitioners impliedly rely to
support their restrictive interpretation, does not apply when words are mentioned by way of example.[15] It is
obvious from the wording of Republic Act No. 7227, particularly the use of the phrase such as, that the

257
enumeration only meant to illustrate incentives that the SSEZ is authorized to grant, in line with its being a free
port zone.
Furthermore, said legal maxim should be applied only as a means of discovering legislative intent which is
not otherwise manifest, and should not be permitted to defeat the plainly indicated purpose of the Legislature. [16]
The records of the Senate containing the discussion of the concept of special economic zone in Section 12
(a) of Republic Act No. 7227 show the legislative intent that consumer goods entering the SSEZ which satisfy
the needs of the zone and are consumed there are not subject to duties and taxes in accordance with
Philippine laws, thus:

Senator Guingona. . . . The concept of Special Economic Zone is one that really includes the concept of a free
port, but it is broader. While a free port is necessarily included in the Special Economic Zone, the reverse is not
true that a free port would include a special economic zone.

Special Economic Zone, Mr. President, would include not only the incoming and outgoing of vessels, duty-free
and tax-free, but it would involve also tourism, servicing, financing and all the appurtenances of an investment
center. So, that is the concept, Mr. President. It is broader. It includes the free port concept and would cater to
the greater needs of Olangapo City, Subic Bay and the surrounding municipalities.

Senator Enrile. May I know then if a factory located within the jurisdiction of Morong, Bataan that was
originally a part of the Subic Naval reservation, be entitled to a free port treatment or just a special economic
zone treatment?

Senator Guingona. As far as the goods required for manufacture is concerned, Mr. President, it would have
privileges of duty-free and tax-free. But in addition, the Special Economic Zone could embrace the needs of
tourism, could embrace the needs of servicing, could embrace the needs of financing and other investment
aspects.

Senator Enrile. When a hotel is constructed, Mr. President, in this geographical unit which we call a special
economic zone, will the goods entering to be consumed by the customers or guests of the hotel be subject to
duties?

Senator Guingona. That is the concept that we are crafting, Mr. President.

Senator Enrile. No. I am asking whether those goods will be duty-free, because it is constructed within a free
port.

Senator Guingona. For as long as it services the needs of the Special Economic Zone, yes.

Senator Enrile. For as long as the goods remain within the zone, whether we call it an economic zone or a free
port, for as long as we say in this law that all goods entering this particular territory will be duty-free and tax-
free, for as long as they remain there, consumed there or reexported or destroyed in that place, then they are
not subject to the duties and taxes in accordance with the laws of the Philippines?

Senator Guingona. Yes.[17]

Petitioners rely on Committee Report No. 1206 submitted by the Ad Hoc Oversight Committee on Bases
Conversion on June 26, 1995. Petitioners put emphasis on the reports finding that the setting up of duty-free
stores never figured in the minds of the authors of Republic Act No. 7227 in attracting foreign investors to the
former military baselands. They maintain that said law aimed to attract manufacturing and service enterprises

258
that will employ the dislocated former military base workers, but not investors who would buy consumer goods
from duty-free stores.
The Court is not persuaded. Indeed, it is well-established that opinions expressed in the debates and
proceedings of the Legislature, steps taken in the enactment of a law, or the history of the passage of the law
through the Legislature, may be resorted to as aids in the interpretation of a statute with a doubtful
meaning.[18] Petitioners posture, however, overlooks the fact that the 1995 Committee Report they are referring
to came into being well after the enactment of Republic Act No. 7227 in 1993. Hence, as pointed out by
respondent Executive Secretary Torres, the aforementioned report cannot be said to form part of Republic Act
No. 7227s legislative history.
Section 12 of Republic Act No. 7227, provides in part, thus:

SEC. 12. Subic Special Economic Zone. -- . . .

The abovementioned zone shall be subject to the following policies:

(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent
provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-
sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and
around the zone and to attract and promote productive foreign investments. [19]

The aforecited policy was mentioned as a basis for the issuance of Executive Order No. 97-A, thus:

WHEREAS, Republic Act No. 7227 provides that within the framework and subject to the mandate and
limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special
Economic and Free Port Zone (SSEFPZ) shall be developed into a self-sustaining industrial, commercial,
financial and investment center to generate employment opportunities in and around the zone and to attract and
promote productive foreign investments; and

WHEREAS, a special tax and duty-free privilege within a Secured Area in the SSEFPZ subject, to existing laws
has been determined necessary to attract local and foreign visitors to the zone.

Executive Order No. 97-A provides guidelines to govern the tax and duty-free privileges within the
Secured Area of the Subic Special Economic and Free Port Zone. Paragraph 1.6 thereof states that (t)he sale of
tax and duty-free consumer items in the Secured Area shall only be allowed in duly authorized duty-free shops.
The Court finds that the setting up of such commercial establishments which are the only ones duly
authorized to sell consumer items tax and duty-free is still well within the policy enunciated in Section 12 of
Republic Act No. 7227 that . . .the Subic Special Economic Zone shall be developed into a self-sustaining,
industrial, commercial, financial and investment center to generate employment opportunities in and
around the zone and to attract and promote productive foreign investments. (Emphasis supplied.)
However, the Court reiterates that the second sentences of paragraphs 1.2 and 1.3 of Executive Order
No. 97-A, allowing tax and duty-free removal of goods to certain individuals, even in a limited amount, from
the Secured Area of the SSEZ, are null and void for being contrary to Section 12 of Republic Act No. 7227.
Said Section clearly provides that exportation or removal of goods from the territory of the Subic Special
Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under
the Customs and Tariff Code and other relevant tax laws of the Philippines.
On the other hand, insofar as the CSEZ is concerned, the case for an invalid exercise of executive
legislation is tenable.

259
 In John Hay Peoples Alternative Coalition, et al. v. Victor Lim, et al.,[20] this Court resolved an issue, very
much like the one herein, concerning the legality of the tax exemption benefits given to the John Hay Economic
Zone under Presidential Proclamation No. 420, Series of 1994, CREATING AND DESIGNATING A
PORTION OF THE AREA COVERED BY THE FORMER CAMP JOHN AS THE JOHN HAY SPECIAL
ECONOMIC ZONE PURSUANT TO REPUBLIC ACT NO. 7227.
In that case, among the arguments raised was that the granting of tax exemptions to John Hay was an
invalid and illegal exercise by the President of the powers granted only to the Legislature. Petitioners therein
argued that Republic Act No. 7227 expressly granted tax exemption only to Subic and not to the other economic
zones yet to be established. Thus, the grant of tax exemption to John Hay by Presidential Proclamation
contravenes the constitutional mandate that [n]o law granting any tax exemption shall be passed without the
concurrence of a majority of all the members of Congress. [21]
This Court sustained the argument and ruled that the incentives under Republic Act No. 7227 are exclusive
only to the SSEZ. The President, therefore, had no authority to extend their application to John Hay. To quote
from the Decision:

More importantly, the nature of most of the assailed privileges is one of tax exemption. It is the legislature,
unless limited by a provision of a state constitution, that has full power to exempt any person or corporation or
class of property from taxation, its power to exempt being as broad as its power to tax. Other than Congress, the
Constitution may itself provide for specific tax exemptions, or local governments may pass ordinances on
exemption only from local taxes.

The challenged grant of tax exemption would circumvent the Constitutions imposition that a law granting any
tax exemption must have the concurrence of a majority of all the members of Congress. In the same vein, the
other kinds of privileges extended to the John Hay SEZ are by tradition and usage for Congress to legislate
upon.

Contrary to public respondents suggestions, the claimed statutory exemption of the John Hay SEZ from taxation
should be manifest and unmistakable from the language of the law on which it is based; it must be expressly
granted in a statute stated in a language too clear to be mistaken. Tax exemption cannot be implied as it must be
categorically and unmistakably expressed.

If it were the intent of the legislature to grant to John Hay SEZ the same tax exemption and incentives given to
the Subic SEZ, it would have so expressly provided in R.A. No. 7227.[22]

In the present case, while Section 12 of Republic Act No. 7227 expressly provides for the grant of
incentives to the SSEZ, it fails to make any similar grant in favor of other economic zones, including the CSEZ.
Tax and duty-free incentives being in the nature of tax exemptions, the basis thereof should be categorically and
unmistakably expressed from the language of the statute. Consequently, in the absence of any express grant of
tax and duty-free privileges to the CSEZ in Republic Act No. 7227, there would be no legal basis to uphold the
questioned portions of two issuances: Section 5 of Executive Order No. 80 and Section 4 of BCDA Board
Resolution No. 93-05-034, which both pertain to the CSEZ.
Petitioners also contend that the questioned issuances constitute executive legislation for allowing the
removal of consumer goods and items from the zones without payment of corresponding duties and taxes in
violation of Republic Act No. 7227 as Section 12 thereof provides for the taxation of goods that are exported or
removed from the SSEZ to other parts of the Philippine territory.
On September 26, 1997, Executive Order No. 444 was issued, curtailing the duty-free shopping privileges
in the SSEZ and the CSEZ to prevent abuse of duty-free privilege and to protect local industries from unfair
competition. The pertinent provisions of said issuance state, as follows:

260
 SECTION 3. Special Shopping Privileges Granted During the Year-round Centennial Anniversary Celebration
in 1998. Upon effectivity of this Order and up to the Centennial Year 1998, in addition to the permanent
residents, locators and employees of the fenced-in areas of the Subic Special Economic and Freeport Zone and
the Clark Special Economic Zone who are allowed unlimited duty free purchases, provided these are consumed
within said fenced-in areas of the Zones, the residents of the municipalities adjacent to Subic and Clark as
respectively provided in R.A. 7227 (1992) and E.O. 97-A s. 1993 shall continue to be allowed One Hundred US
Dollars (US$100) monthly shopping privilege until 31 December 1998. Domestic tourists visiting Subic and
Clark shall be allowed a shopping privilege of US$25 for consumable goods which shall be consumed only in
the fenced-in area during their visit therein.

SECTION 4. Grant of Duty Free Shopping Privileges Limited Only To Individuals Allowed by Law. Starting 1
January 1999, only the following persons shall continue to be eligible to shop in duty free shops/outlets with
their corresponding purchase limits:

a. Tourists and Filipinos traveling to or returning from foreign destinations under E.O. 97-A s. 1993 One Thousand
US Dollars (US$1,000) but not to exceed Ten Thousand US Dollars (US$10,000) in any given year;

b. Overseas Filipino Workers (OFWs) and Balikbayans defined under R.A. 6768 dated 3 November 1989 Two
Thousand US Dollars (US$2,000);

c. Residents, eighteen (18) years old and above, of the fenced-in areas of the freeports under R.A. 7227 (1992) and
E.O. 97-A s. 1993 Unlimited purchase as long as these are for consumption within these freeports.

The term "Residents" mentioned in item c above shall refer to individuals who, by virtue of domicile or
employment, reside on permanent basis within the freeport area. The term excludes (1) non-residents who have
entered into short- or long-term property lease inside the freeport, (2) outsiders engaged in doing business
within the freeport, and (3) members of private clubs (e.g., yacht and golf clubs) based or located within the
freeport. In this regard, duty free privileges granted to any of the above individuals (e.g., unlimited shopping
privilege, tax-free importation of cars, etc.) are hereby revoked.[23]

A perusal of the above provisions indicates that effective January 1, 1999, the grant of duty-free shopping
privileges to domestic tourists and to residents living adjacent to SSEZ and the CSEZ had been revoked.
Residents of the fenced-in area of the free port are still allowed unlimited purchase of consumer goods, as long
as these are for consumption within these freeports. Hence, the only individuals allowed by law to shop in the
duty-free outlets and remove consumer goods out of the free ports tax-free are tourists and Filipinos traveling to
or returning from foreign destinations, and Overseas Filipino Workers and Balikbayans as defined under
Republic Act No. 6768.[24]
Subsequently, on October 20, 2000, Executive Order No. 303 was issued, amending Executive Order No.
444. Pursuant to the limited duration of the privileges granted under the preceding issuance, Section 2 of
Executive Order No. 303 declared that [a]ll special shopping privileges as granted under Section 3 of Executive
Order 444, s. 1997, are hereby deemed terminated. The grant of duty free shopping privileges shall be restricted
to qualified individuals as provided by law.
It bears noting at this point that the shopping privileges currently being enjoyed by Overseas Filipino
Workers, Balikbayans, and tourists traveling to and from foreign destinations, draw authority not from the
issuances being assailed herein, but from Executive Order No. 46 [25] and Republic Act No. 6768, both enacted
prior to the promulgation of Republic Act No. 7227.
From the foregoing, it appears that petitioners objection to the allowance of tax-free removal of goods from
the special economic zones as previously authorized by the questioned issuances has become moot and
academic.
261
 In any event, Republic Act No. 7227, specifically Section 12 (b) thereof, clearly provides that exportation
or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine
territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax
laws of the Philippines.
Thus, the removal of goods from the SSEZ to other parts of the Philippine territory without payment of said
customs duties and taxes is not authorized by the Act. Consequently, the following italicized provisions found
in the second sentences of paragraphs 1.2 and 1.3, Section 1 of Executive Order No. 97-A are null and void:

1.2 Residents of the SSEFPZ living outside the Secured Area can enter and consume any quantity of
consumption items in hotels and restaurants within the Secured Area. However, these residents can
purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items
worth not exceeding US $100 per month per person. Only residents age 15 and over are entitled to this
privilege.

1.3 Filipinos not residing within the SSEFPZ can enter the Secured Area and consume any quantity of
consumption items in hotels and restaurants within the Secured Area. However, they can purchase and
bring out of the Secured Area to other parts of the Philippine territory consumer items worth not
exceeding US $200 per year per person. Only Filipinos age 15 and over are entitled to this
privilege.[26]

A similar provision found in paragraph 5, Section 4(A) of BCDA Board Resolution No. 93-05-034 is also
null and void. Said Resolution applied the incentives given to the SSEZ under Republic Act No. 7227 to the
CSEZ, which, as aforestated, is without legal basis.
Having concluded earlier that the CSEZ is excluded from the tax and duty-free incentives provided under
Republic Act No. 7227, this Court will resolve the remaining arguments only with regard to the operations of
the SSEZ. Thus, the assailed issuance that will be discussed is solely Executive Order No. 97-A, since it is the
only one among the three questioned issuances which pertains to the SSEZ.

Equal Protection of the Laws

Petitioners argue that the assailed issuance (Executive Order No. 97-A) is violative of their right to equal
protection of the laws, as enshrined in Section 1, Article III of the Constitution. To support this argument, they
assert that private respondents operating inside the SSEZ are not different from the retail establishments located
outside, the products sold being essentially the same. The only distinction, they claim, lies in the products
variety and source, and the fact that private respondents import their items tax-free, to the prejudice of the
retailers and manufacturers located outside the zone.
Petitioners contention cannot be sustained. It is an established principle of constitutional law that the
guaranty of the equal protection of the laws is not violated by a legislation based on a reasonable
classification.[27] Classification, to be valid, must (1) rest on substantial distinction, (2) be germane to the
purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the
same class.[28]
Applying the foregoing test to the present case, this Court finds no violation of the right to equal protection
of the laws. First, contrary to petitioners claim, substantial distinctions lie between the establishments inside
and outside the zone, justifying the difference in their treatment. In Tiu v. Court of Appeals,[29] the
constitutionality of Executive Order No. 97-A was challenged for being violative of the equal protection clause.
In that case, petitioners claimed that Executive Order No. 97-A was discriminatory in confining the application

262
of Republic Act No. 7227 within a secured area of the SSEZ, to the exclusion of those outside but are,
nevertheless, still within the economic zone.
Upholding the constitutionality of Executive Order No. 97-A, this Court therein found substantial
differences between the retailers inside and outside the secured area, thereby justifying a valid and reasonable
classification:

Certainly, there are substantial differences between the big investors who are being lured to establish and
operate their industries in the so-called secured area and the present business operators outside the area. On the
one hand, we are talking of billion-peso investments and thousands of new jobs. On the other hand, definitely
none of such magnitude. In the first, the economic impact will be national; in the second, only local. Even more
important, at this time the business activities outside the secured area are not likely to have any impact in
achieving the purpose of the law, which is to turn the former military base to productive use for the benefit of
the Philippine economy. There is, then, hardly any reasonable basis to extend to them the benefits and
incentives accorded in R.A. 7227. Additionally, as the Court of Appeals pointed out, it will be easier to manage
and monitor the activities within the secured area, which is already fenced off, to prevent fraudulent importation
of merchandise or smuggling.

It is well-settled that the equal-protection guarantee does not require territorial uniformity of laws. As long as
there are actual and material differences between territories, there is no violation of the constitutional clause.
And of course, anyone, including the petitioners, possessing the requisite investment capital can always avail of
the same benefits by channeling his or her resources or business operations into the fenced-off free port zone.[30]

The Court in Tiu found real and substantial distinctions between residents within the secured area and those
living within the economic zone but outside the fenced-off area. Similarly, real and substantial differences exist
between the establishments herein involved. A significant distinction between the two groups is that enterprises
outside the zones maintain their businesses within Philippine customs territory, while private respondents and
the other duly-registered zone enterprises operate within the so-called separate customs territory. To grant the
same tax incentives given to enterprises within the zones to businesses operating outside the zones, as
petitioners insist, would clearly defeat the statutes intent to carve a territory out of the military reservations in
Subic Bay where free flow of goods and capital is maintained.
The classification is germane to the purpose of Republic Act No. 7227. As held in Tiu, the real concern of
Republic Act No. 7227 is to convert the lands formerly occupied by the US military bases into economic or
industrial areas. In furtherance of such objective, Congress deemed it necessary to extend economic incentives
to the establishments within the zone to attract and encourage foreign and local investors. This is the very
rationale behind Republic Act No. 7227 and other similar special economic zone laws which grant a complete
package of tax incentives and other benefits.
The classification, moreover, is not limited to the existing conditions when the law was promulgated, but to
future conditions as well, inasmuch as the law envisioned the former military reservation to ultimately develop
into a self-sustaining investment center.
And, lastly, the classification applies equally to all retailers found within the secured area. As ruled
in Tiu, the individuals and businesses within the secured area, being in like circumstances or contributing
directly to the achievement of the end purpose of the law, are not categorized further. They are all similarly
treated, both in privileges granted and in obligations required.
With all the four requisites for a reasonable classification present, there is no ground to invalidate
Executive Order No. 97-A for being violative of the equal protection clause.

Prohibition against Unfair Competition

263
and Practices in Restraint of Trade

Petitioners next argue that the grant of special tax exemptions and privileges gave the private respondents
undue advantage over local enterprises which do not operate inside the SSEZ, thereby creating unfair
competition in violation of the constitutional prohibition against unfair competition and practices in restraint of
trade.
The argument is without merit. Just how the assailed issuance is violative of the prohibition against unfair
competition and practices in restraint of trade is not clearly explained in the petition. Republic Act No. 7227,
and consequently Executive Order No. 97-A, cannot be said to be distinctively arbitrary against the welfare of
businesses outside the zones. The mere fact that incentives and privileges are granted to certain enterprises to
the exclusion of others does not render the issuance unconstitutional for espousing unfair competition. Said
constitutional prohibition cannot hinder the Legislature from using tax incentives as a tool to pursue its policies.
Suffice it to say that Congress had justifiable reasons in granting incentives to the private respondents, in
accordance with Republic Act No. 7227s policy of developing the SSEZ into a self-sustaining entity that will
generate employment and attract foreign and local investment. If petitioners had wanted to avoid any alleged
unfavorable consequences on their profits, they should upgrade their standards of quality so as to effectively
compete in the market. In the alternative, if petitioners really wanted the preferential treatment accorded to the
private respondents, they could have opted to register with SSEZ in order to operate within the special
economic zone.

Preferential Use of Filipino Labor, Domestic Materials

and Locally Produced Goods

Lastly, petitioners claim that the questioned issuance (Executive Order No. 97-A) openly violated the State
policy of promoting the preferential use of Filipino labor, domestic materials and locally produced goods and
adopting measures to help make them competitive.
Again, the argument lacks merit. This Court notes that petitioners failed to substantiate their sweeping
conclusion that the issuance has violated the State policy of giving preference to Filipino goods and labor. The
mere fact that said issuance authorizes the importation and trade of foreign goods does not suffice to declare it
unconstitutional on this ground.
Petitioners cite Manila Prince Hotel v. GSIS[31] which, however, does not apply. That case dealt with the
policy enunciated under the second paragraph of Section 10, Article XII of the Constitution, [32] applicable to the
grant of rights, privileges, and concessions covering the national economy and patrimony, which is different
from the policy invoked in this petition, specifically that of giving preference to Filipino materials and labor
found under Section 12 of the same Article of the Constitution. (Emphasis supplied).
In Taada v. Angara,[33] this Court elaborated on the meaning of Section 12, Article XII of the Constitution
in this wise:

[W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at
the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality
and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices
that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out
foreign investments, goods and services in the development of the Philippine economy. While the Constitution
does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not
prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.[34]
264
 This Court notes that the Executive Department, with its subsequent issuance of Executive Order Nos. 444
and 303, has provided certain measures to prevent unfair competition. In particular, Executive Order Nos. 444
and 303 have restricted the special shopping privileges to certain individuals.[35] Executive Order No. 303 has
limited the range of items that may be sold in the duty-free outlets,[36] and imposed sanctions to curb abuses of
duty-free privileges.[37] With these measures, this Court finds no reason to strike down Executive Order No. 97-
A for allegedly being prejudicial to Filipino labor, domestic materials and locally produced goods.
WHEREFORE, the petition is PARTLY GRANTED. Section 5 of Executive Order No. 80 and Section 4
of BCDA Board Resolution No. 93-05-034 are hereby declared NULL and VOID and are accordingly declared
of no legal force and effect. Respondents are hereby enjoined from implementing the aforesaid void provisions.
All portions of Executive Order No. 97-A are valid and effective, except the second sentences in paragraphs 1.2
and 1.3 of said Executive Order, which are hereby declared INVALID.
No costs.
SO ORDERED.

EN BANC

[G.R. No. 124360. November 5, 1997.]

FRANCISCO
S. TATAD, petitioner,vs.THE SECRETARY OF THE DEPARTMENT OF ENERGY AN
D THE SECRETARY OF THE DEPARTMENT OF FINANCE,respondents.

[G.R. No. 127867. November 5, 1997.]

EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, WIGBERTO

TAADA, FLAG HUMAN RIGHTS FOUNDATION, INC.,FREEDOM FROM DEBT
COALITION (FDC),SANLAKAS, petitioners, vs.HON. RUBEN TORRES in his capacity
as the Executive Secretary, HON. FRANCISCO VIRAY, in his capacity as
the Secretary of Energy, CALTEX Philippines, Inc.,PETRON Corporation and
PILIPINAS SHELL Corporation,respondents.

Brillantes, Navarro, Jumamil, Arcilla, Escolin and Martinez Law Office for petitioner in G.R. No. 124360.
Sanidad, Abaya, Cortez, Te Madrid, Viterbo & Tan Law Firm for petitioners in G.R. No. 127867.
Alfonso M. Cruz Law Offices for Enrique Garcia.

SYNOPSIS

Republic Act No. 8180, or the Downstream Oil Industry Regulation Act of 1996, was enacted by Congress for
the purpose of deregulating the downstream oil industry. Its validity was challenged on the following
constitutional grounds: a) that the imposition of different tariff rates on imported crude oil and imported refined
petroleum products violates the equal protection clause; b) the imposition of different tariff rates does not
deregulate the downstream oil industry but instead controls the oil industry; c) the inclusion of the tariff
provision in Section 5(b) of RA 8180 violates the one title-one subject requirement of the Constitution; d) that
Section 15 thereof constitutes undue delegation of legislative power to the President and
265
the Secretary of Energy and violates the constitutional prohibition against monopolies; and e) that Executive
Order No. 392 implementing R.A. 8180 is arbitrary and unreasonable because it was enacted due to the alleged
depletion of OPSF fund a condition not found in the law.
This Court has adopted a liberal construction of the one title-one subject rule. A law having a single general
subject indicated in the title may contain any number ofprovisions, so long as they are not inconsistent with or
foreign to the general subject, and may be considered in furtherance of such subject by providing for the method
and means of carrying out the general subject. Section 5(b) providing for tariff differential is germane to the
subject of R.A. No. 8180 which is the deregulation of the downstream oil industry.
Section 15 can hurdle both completeness test and the sufficient standard test. Full deregulation at the
end of March 1997 is mandatory and the Executive has no discretion to postpone it for any purported reason.
Thus, the law is complete on the question of the final date of full deregulation.
Section 15 of R.A. No. 8180 did not mention the depletion of the OPSF fund as basis of deregulation, thus said
extraneous factor constitutes a misapplication of R.A. No. 8180.
The 4% tariff differential and the inventory requirement are significant barriers which discourage new players
to enter the market. As the dominant players, Petron, Shell and Caltex boast of existing refineries of various
capacities and easily comply with the inventory requirement as against prospective new players.
The offending provisions of R.A. No. 8180 so permeate its essence that the entire law has to be struck down.
R.A. No. 8180 with its anti-competition provisions cannot be allowed by this Court to stand even while
Congress is working to remedy its defects. TIAEac

SYLLABUS

1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL POWER, CONSTRUED. Judicial power includes

not only the duty of the courts to settle actual controversies involving rights which are legally demandable and
enforceable, but also the duty to determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The courts, as
guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the
legislature transcends the limit imposed by the fundamental law. Where a statute violates the Constitution, it is
not only the right but the duty of the judiciary to declare such act as unconstitutional and void. EcSCHD
2. ID.; ID.; ISSUES ASSAILING THE CONSTITUTIONALITY OF R.A. 8180, JUSTICIABLE. Even a
sideglance at the petitions will reveal that petitioners have raised constitutional issues which deserve the
resolution of this Court in view of their seriousness and their value as precedents. Our statement of facts and
definition ofissues clearly show that petitioners are assailing R.A. No. 8180 because its provisions infringe
the Constitution and not because the law lacks wisdom. The principle ofseparation of power mandates that
challenges on the constitutionality of a law should be resolved in our courts of justice while doubts on the
wisdom of a law should be debated in the halls of Congress. Every now and then, a law may be denounced in
court both as bereft of wisdom and constitutionally infirmed. Such denunciation will not deny this Court of its
jurisdiction to resolve the constitutionality of the said law while prudentially refusing to pass on its wisdom.
3. REMEDIAL LAW; ACTIONS; PARTIES; TECHNICALITIES SUCH AS PERSONALITY, STANDING
OR INTEREST, ARE BRUSHED ASIDE WHERE ISSUES ARE OF PUBLIC IMPORTANCE. The
effort of respondents to question the locus standi of petitioners must also fall on barren ground. In language too
lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus standi where the
petitioner is able to craft an issue of transcendental significance to the people. InKapatiran ng mga Naglilingkod
sa Pamahalaan ng Pilipinas, Inc. v. Tan, we stressed: ". . . Objections to taxpayers' suit for lack of sufficient
personality, standing or interest are, however, in the main procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Court's duty, under the1987 Constitution, to determine
266
whether or not the other branches of government have kept themselves within the limits of the Constitution and
the laws and that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these petitions." There is not a dotof disagreement
between the petitioners and the respondents on the far reaching importance of the validity of RA No. 8180
deregulating our downstream oil industry. Thus, there is no good sense in being hypertechnical on the
standing of petitioners for they pose issues which are significant to our people and which deserve our forthright
resolution.
4. CONSTITUTIONAL LAW; CONGRESS; ONE TITLE-ONE SUBJECT RULE; LITERALLY
CONSTRUED. As a policy, this Court has adopted a liberal construction of the one title-one subject rule.
We have consistently ruled that the title need not mirror, fully index or catalogue all contents and minute
details of a law. A law having a single general subject indicated in the title may contain any
number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to
the general subject, and may be considered in furtherance of such subject by providing for the method and
means of carrying out the general subject.
5. ID.;ID.;ID.;SECTION 5(B) PROVIDING FOR TARIFF DIFFERENTIAL, GERMANE TO
DEREGULATION OF DOWNSTREAM OIL INDUSTRY. We hold that Section 5(b) providing for tariff
differential is germane to the subject of R.A. No. 8180 which is the deregulation of the downstream oil industry.
The section is supposed to sway prospective investors to put up refineries in our country and make them rely
less on imported petroleum.
6. ID.;ID.;POWER TO DELEGATE EXECUTION OF LAWS; TESTS. The power of Congress to delegate
the execution of laws has long been settled by this Court. As early as 1916 in Compania General de Tabacos de
Filipinas vs. The Board of Public Utility Commissioners,this Court, thru Mr. Justice Moreland, held that "the
true distinction is between the delegation of power to make the law, which necessarily involves a discretion as
to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no valid objection can be made." Over the years, as
the legal engineering of men's relationship became more difficult, Congress has to rely more on the
practice of delegating the execution of laws to the executive and other administrative agencies. Two tests have
been developed to determine whether the delegation of the power to execute laws does not involve the
abdication of the power to make law itself. We delineated the metes and bounds of these tests in Eastern
Shipping Lines, Inc. vs. POEA,thus: "There are two accepted tests to determine whether or not there is a valid
delegation of legislative power, viz.:the completeness test and the sufficient standard test. Under the first test,
the law must be complete in all its terms and conditions when it leaves the legislative such that when it reaches
the delegate the only thing he will have to do is to enforce it. Under the sufficient standard test, there must be
adequate guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent
the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to
the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially
legislative." caAICE
7. ID.;ID.;ID.;ID.;EVEN IF THE LAW DOES NOT EXPRESSLY PINPOINT THE STANDARD, COURTS
WILL BEND BACKWARD TO LOCATE THE SAME ELSEWHERE. The validity of delegating
legislative power is now a quiet area in our constitutional landscape. As sagely observed,
delegation of legislative power has become an inevitability in light of the increasing complexity of the
task of government. Thus, courts bend as far back as possible to sustain the constitutionality of laws which are
assailed as unduly delegating legislative powers. Citing Hirabayashi v. United States as authority, Mr. Justice
Isagani A. Cruz states "that even if the law does not expressly pinpoint the standard, the courts will bend over
backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity."

8. ID.;ID.;.SECTION 15 OF R.A. 8180, NOT UNDUE DELEGATION OF POWER. Given the

groove of the Court's rulings, the attempt of petitioners to strike down Section 15 on the ground of undue
267
delegation of legislative power cannot prosper. Section 15 can hurdle both the completeness test and the
sufficient standard test. It will be noted that Congress expressly provided in R.A. No. 8180 that full deregulation
will start at the end of March 1997, regardless of the occurrence of any event. Full deregulation at the
end of March 1997 is mandatory and the Executive has no discretion to postpone it for any purported reason.
Thus, the law is complete on the question of the final date of full deregulation. The discretion given to the
President is to advance the date of full deregulation before the end of March 1997. Section 15 lays down the
standard to guide the judgment of the President he is to time it as far as practicable when the prices of crude
oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation
to the US dollar is stable.Petitioners contend that the words "as far as practicable," "declining" and "stable"
should have been defined in R.A. No. 8180 as they do not set determinate or determinable standards. The
stubborn submission deserves scant consideration. The dictionary meanings of these words are well settled and
cannot confuse men of reasonable intelligence. Webster defines "practicable" as meaning possible to practice or
perform, "decline" as meaning to take a downward direction, and "stable" as meaning firmly established. The
fear of petitioners that these words will result in the exercise of executive discretion that will run riot is thus
groundless. To be sure, the Court has sustained the validity of similar, if not more general standards in other
cases.
9. ID.; ID.; DELEGATION OF POWER; EXECUTIVE IS BEREFT OF ANY RIGHT TO ALTER THE
STANDARD SET IN R.A. 8180 BY CONSIDERING THE DEPLETION OF OIL PRICE STABILIZATION
FUND (OPSF) AS A FACTOR IN FULLY DEREGULATING THE DOWNSTREAM OIL INDUSTRY IN
FEBRUARY 1997. The Executive department failed to follow faithfully the standards set by R.A. No. 8180
when it considered the extraneous factor of depletion of the OPSF fund. The misappreciation of this extra factor
cannot be justified on the ground that the Executive department considered anyway the stability of the
prices of crude oil in the world market and the stability of the exchange rate of the peso to the dollar. By
considering another factor to hasten full deregulation, the Executive department rewrote the standards set forth
in R.A. 8180. The Executive is bereft of any right to alter either by subtraction or addition the standards set in
R.A. No. 8180 for it has no power to make laws. To cede to the Executive the power to make law is to invite
tyranny, indeed, to transgress the principle of separation of powers. The exercise of delegated power is given a
strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the terms of agency. In the
cases at bar, the Executive co-mingled the factor of depletion of the OPSF fund with the
factors of decline of the price of crude oil in the world market and the stability of the peso to the US dollar. On
the basis of the text of E.O. No. 392, it is impossible to determine the weight given by the
Executive department to the depletion of the OPSF fund. It could well be the principal consideration for the
early deregulation. It could have been accorded an equal significance. Or its importance could be nil. In
light of this uncertainty, we rule that early deregulation under E.O. No. 392 constitutes a misapplication of R.A.
No. 8180.
10. ID.;NATIONAL ECONOMY AND PATRIMONY; MONOPOLY AND COMBINATION IN
RESTRAINT OF TRADE, DEFINED. A monopoly is a privilege or peculiar advantage vested in one or
more persons or companies, consisting in the exclusive right or power to carry on a particular business or trade,
manufacture a particular article, or control the sale or the whole supply of a particular commodity. It is a
form of market structure in which one or only a few firms dominate the total sales of a product or service. On
the other hand, a combination in restraint of trade is an agreement or understanding between two or more
persons, in the form of a contract, trust, pool holding company, or other form of association, for the
purpose of unduly restricting competition, monopolizing trade and commerce in a certain commodity,
controlling its production, distribution and price, or otherwise interfering with freedom of trade without
statutory authority. Combination in restraint of trade refers to the means while monopoly refers to the end.
11. ID.;ID.;FREE ENTERPRISE SYSTEM DID NOT PER SE PROHIBIT THE
OPERATION OF MONOPOLIES. While the Constitution embraced free enterprise as an economic creed, it
did not prohibit per se the operation of monopolies which can, however, be regulated in the public interest.
Thus too, our free enterprise system is not based on a market of pure and unadulterated competition where the
268
State pursues a strict hands-off policy and follows the let-the-devil devour the hindmost rule. Combinations in
restraint of trade and unfair competitions are absolutely proscribed and the proscription is directed both against
the State as well as the private sector. This distinct free enterprise system is dictated by the need to achieve the
goals of our national economy as defined by Section 1, Article XII of the Constitution which are: more
equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit ofthe people; and an expanding productivity as the key to raising
the quality of life for all, especially the underprivileged. It also calls for the State to protect Filipino enterprises
against unfair competition and trade practices.
12. ID.; ID.; ID.; COMPETITION, UNDERLYING PRINCIPLE. Section 19, Article
XII of our Constitution is anti-trust in history and in spirit. It espouses competition. The
desirability of competition is the reason for the prohibition against restraint of trade, the reason for the
interdiction of unfair competition, and the reason for regulationof unmitigated monopolies. Competition is thus
the underlying principle of Section 19, Article XII of our Constitution which cannot be violated by R.A. No.
8180. DCHIAS
13. ID.;ID.;ID.;TARIFF DIFFERENTIAL OF 4% WORKS TO THE IMMENSE BENEFIT OF THE THREE
MAJOR LEAGUE PLAYERS IN THE OIL MARKET. In the cases at bar, it cannot be denied that our
downstream oil industry is operated and controlled by an oligopoly, a foreign oligopoly at that, Petron, Shell
and Caltex stand as the only major league players in the oil market. All other players belong to the lilliputian
league. As the dominant players, Petron, Shell and Caltex boast of existing refineries ofvarious capacities. The
tariff differential of 4% therefore works to their immense benefit. Yet, this is only one edge of the tariff
differential. The other edge cuts and cuts deep in the heart of their competitors. It erects a high barrier to the
entry of new players. New players that intend to equalize the market power of Petron, Shell and Caltex by
building refineries of their own will have to spend billions of pesos. Those who will not build refineries but
compete with them will suffer the huge disadvantage of increasing their product cost by 4%.They will be
competing on an uneven field. The argument that the 4% tariff differential is desirable because it will induce
prospective players to invest in refineries puts the cart before the horse. The first need is to attract new players
and they cannot be attracted by burdening them with heavy disincentives. Without new players belonging to the
league of Petron, Shell and Caltex, competition in our downstream oil industry is an idle dream.
14. ID.;ID.;ID.;ID.;PROVISION ON INVENTORY WIDENS BALANCE OF ADVANTAGE OF THREE
MAJOR OIL COMPANIES AGAINST PROSPECTIVE NEW PLAYERS. The provision on inventory
widens the balance of advantage of Petron, Shell and Caltex against prospective new players. Petron, Shell and
Caltex can easily comply with the inventory requirement of R.A. No. 8180 in view of their existing storage
facilities. Prospective competitors again will find compliance with this requirement difficult as it will entail a
prohibitive cost. The construction cost of storage facilities and the cost of inventory can thus scare prospective
players. Their net effect is to further occlude the entry points of new players, dampen competition and enhance
the control of the market by the three (3) existing oil companies.
15. ID.;ID.;ID.;ID.;PREDATORY PRICING IS ANTI-COMPETITIVE. Finally, we come to the provision
on predatory pricing which is defined as "...selling or offering to sell any product at a price unreasonably below
the industry average cost so as to attract customers to the detriment of competitors." Respondents contend that
this provision works against Petron, Shell and Caltex and protects new entrants. The ban on predatory pricing
cannot be analyzed in isolation. Its validity is interlocked with the barriers imposed by R.A. No. 8180 on the
entry of new players. The inquiry should be to determine whether predatory pricing on the part of the dominant
oil companies is encouraged by the provisions in the law blocking the entry of new players. Text-
writer Hovenkamp,gives the authoritative answer and we quote: "...The rationale for predatory pricing is the
sustaining of losses today that will give a firm monopoly profits in the future. The monopoly profits will never
materialize, however, if the market is flooded with new entrants as soon as the successful predator attempts to
raise its price. Predatory pricing will be profitable only if the market contains significant barriers to new entry."
As aforediscussed, the 4% tariff differential and the inventory requirement are significant barriers which
discourage new players to enter the market. Considering these significant barriers established by R.A. No. 8180
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and the lack of players with the comparable clout of PETRON, SHELL and CALTEX, the temptation for a
dominant player to engage in predatory pricing and succeed is a chilling reality. Petitioners' charge that this
provision on predatory pricing is anti-competitive is not without reason. Respondents belittle these barriers with
the allegation that new players have entered the market since deregulation. A scrutiny of the list of the alleged
new players will, however, reveal that not one belongs to the class and category of PETRON, SHELL and
CALTEX. Indeed, there is no showing that anyof these new players intends to install any refinery and effectively
compete with these dominant oil companies. In any event, it cannot be gainsaid that the new players could have
been more in number and more impressive in might if the illegal entry barriers in R.A. No. 8180 were not
erected.

16. STATUTORY CONSTRUCTION; STATUTES; WHERE PART OF A STATUTE IS VOID WHILE

ANOTHER PART IS VALID, THE VALID PORTION, IF SEPARABLE FROM THE INVALID, MAY
STAND AND BE ENFORCED; EXCEPTION. "...The general rule is that where part of a statute is void as
repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may
stand and be enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the legislature would have
enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries out the legislative intent. . . . The exception to the
general rule is that when the parts of a statute are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended
them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent,
conditional, or connected with one another the legislature intended the statute to be carried out as a whole and
would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other
provisions thus dependent, conditional, or connected must fall with them."
17. CONSTITUTIONAL LAW; CONGRESS; R.A. NO. 8180, UNCONSTITUTIONAL. R.A. No. 8180
contains a separability clause. Section 23 provides that "if for any reason, any section or provision of this Act is
declared unconstitutional or invalid, such parts not affected thereby shall remain in full force and effect." This
separability clause notwithstanding, we hold that the offending provisions of R.A. No. 8180 so permeate its
essence that the entire law has to be struck down. The provisions on tariff differential, inventory and predatory
pricing are among the principal props of R.A. No. 8180. Congress could not have deregulated the downstream
oil industry without these provisions. Unfortunately, contrary to their intent, these provisions on tariff
differential, inventory and predatory pricing inhibit fair competition, encourage monopolistic power and
interfere with the free interaction of market forces. R.A. No. 8180 needs provisions to vouchsafe free and fair
competition. The need for these vouchsafing provisions cannot be overstated. Before deregulation,PETRON,
SHELL and CALTEX had no real competitors but did not have a free run of the market because government
controls both the pricing and non-pricing aspects of the oil industry. After deregulation,PETRON, SHELL and
CALTEX remain unthreatened by real competition yet are no longer subject to control by government with
respect to their pricing and non-pricing decisions. The aftermath of R.A. No. 8180 is a deregulated market
where competition can be corrupted and where market forces can be manipulated by oligopolies. R.A. No. 8180
is declared unconstitutional and E.O. NO. 372 void.
18. ID.; SUPREME COURT; GUARDIAN NOT ONLY OF THE PEOPLE'S POLITICAL RIGHTS BUT
THEIR ECONOMIC RIGHTS AS WELL. With this Decision, some circles will chide the Court for
interfering with an economic decision of Congress. Such criticism is charmless for the Court is annulling R.A.
No. 8180 not because it disagrees with deregulation as an economic policy but because as cobbled by Congress
in its present form, the law violates the Constitution. The right call therefor should be for Congress to write a
new oil deregulation law that conforms with the Constitution and not for this Court to shirk its duty of striking
down a law that offend theConstitution. Striking down R.A. No. 8180 may cost losses in quantifiable terms to
the oil oligopolists. But the loss in tolerating the tampering of our Constitution is not quantifiable in pesos and
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centavos. More worthy of protection than the supra-normal profits of private corporations is the sanctity of the
fundamental principles of theConstitution. Indeed when confronted by a law violating the Constitution, the
Court has no option but to strike it down dead. Lest it is missed, the Constitution is a covenant that grants and
guarantees both the political and economic rights of the people. The Constitution mandates this Court to be the
guardian not only of the people's political rights but their economic rights as well. The protection of the
economic rights of the poor and the powerless is of greater importance to them for they are concerned more
with the esoterics of living and less with the esoterics of liberty. Hence, for as long as the Constitution reigns
supreme so long will this Court be vigilant in upholding the economic rights of our people especially from the
onslaught of the powerful. Our defense of the people's economic rights may appear heartless because it cannot
be half-hearted.
KAPUNAN, J.,concurring opinion:
1. CONSTITUTIONAL LAW; SUPREME COURT; WITH BOUNDEN DUTY TO DECIDE ALL CASES
INVOLVING THE CONSTITUTIONALITY OF LAWS. Admittedly, the wisdom of political and economic
decisions are outside the scrutiny of the Court. However, the political question is not some mantra that will
automatically cloak executive orders and laws (or provisions thereof) with legitimacy. It is this Court's bounden
duty under Sec. 4(2), Art. VIII of the 1987 Constitution to decide all cases involving the
constitutionality of laws and under Sec. l of the same article, "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 the Government."
2. ID.; CONGRESS; RA 8180 (DOWNSTREAM OIL INDUSTRY DEREGULATION ACT OF 1996);
SECTION 5 THEREOF IMPOSING 4% TARIFF DIFFERENTIAL BETWEEN IMPORTED CRUDE OIL
AND IMPORTED REFINED PETROLEUM PRODUCTS, STRUCK DOWN FOR BEING AN OBSTACLE
TO THE ENTRY OF NEW PLAYERS IN THE OIL MARKET. Respondents are one in asserting that the
4% tariff differential between imported crude oil and imported refined petroleum products under Section
5 of RA 8180 is intended to encourage the new entrants to put up their own refineries in the country. The
advantages of domestic refining cannot be discounted, but we must view this intent in the proper perspective.
The primary purpose of the deregulation law is to open up the market and establish free competition. The
priority of the deregulation law, therefore, is to encourage new oil companies to come in first. Incentives to
encourage the building of local refineries should be provided after the new oil companies have entered the
Philippine market and are actively participating therein. The threshold question therefore is, is the 4% tariff
differential a barrier to the entry of new oil companies in the Philippine market? It is. Since the prospective oil
companies do not (as yet) have local refineries, they would have to import refined petroleum products, on which
a 7% tariff duty is imposed. On the other hand, the existing oil companies already have domestic refineries and,
therefore, only import crude oil which is taxed at a lower rate of 3%.Tariffs are part of the costs of production.
Hence, this means that with the 4% tariff differential (which becomes an added cost) the prospective players
would have higher production costs compared to the existing companies and it is precisely this factor which
could seriously affect its decision to enter the market. Viewed in this light, the tariff differential between
imported crude oil and refined petroleum products becomes an obstacle to the entry ofnew players in the
Philippine oil market. It defeats the purpose of the law and should thus be struck down. DTAHEC
3. ID.,ID.,ID.;SECTIONS 6 AND 9, DECLARED UNCONSTITUTIONAL. The same rationale holds true
for the two other assailed provisions (Section 6 and 9) in the Oil Deregulation law. The primordial
purpose of the law, J. Kapunan reiterates, is to create a truly free and competitive market. To achieve this goal,
provisions that show the possibility, or even the merest hint, of deterring or impeding the ingress of new blood
in the market should be eliminated outright. He is confident that our lawmakers can formulate other measures
that would accomplish the same purpose (insure security and continuity of petroleum crude products supply and
prevent fly by night operators, in the case of the minimum inventory requirement, for instance) but would not
have on the downside the effect of seriously hindering the entry ofprospective traders in the market. The
overriding consideration, which is the public interest and public benefit calls for the levelling of the playing
fields for the existing oil companies and the prospective new entrants. Only when there are many players in the
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market will free competition reign and economic development begin. Consequently, Section 6 and Section
9(b) of R.A. No. 8180 should similarly be struck down. AaDSTH
PANGANIBAN, J.,concurring opinion:
1. CONSTITUTIONAL LAW; SUPREME COURT; HAS THE DUTY, NOT JUST THE POWER, TO
DETERMINE WHETHER A LAW OR A PART THEREOF OFFENDS THECONSTITUTION. Under
the Constitution, this Court has in appropriate cases the DUTY, not just the power, to determine whether
a law or a part thereof offends the Constitution and, if so, to annul and set it aside. Because a serious challenge
has been hurled against the validity of one such law, namely RA 8180 its criticality having been
preliminarily determined from the petition, comments, reply and, most tellingly, the oral argument on
September 30, 1997 this Court, in the exercise ofits mandated judicial discretion, issued the status quo order
to prevent the continued enforcement and implementation of a law that was prima facie found to be
constitutionally infirm. Indeed, after careful final deliberation, said law is now ruled to be constitutionally
defective thereby disabling respondent oil companies from exercising their erstwhile power, granted by such
defective statute, to determine prices by themselves.

2. ID.; ID.; HAS NO POWER TO PASS UPON THE WISDOM, MERITS AND PROPRIETY OF THE
ACTS OF ITS CO-EQUAL BRANCHES IN GOVERNMENT. Concededly, this Court has no power to pass
upon the wisdom, merits and propriety of the acts of its co-equal branches in government. However, it does
have the prerogative to uphold the Constitution and to strike down and annul a law that contravenes the Charter.
From such duty and prerogative, it shall never shirk or shy away.
3. ID.; ID.; UPHOLDS CONSTITUTIONAL ADHERENCE TO A TRULY COMPETITIVE ECONOMY BY
INVALIDATING RA. 8180. By annulling RA 8180, this Court is not making a policy statement against
deregulation. Quite the contrary, it is simply invalidating a pseudo deregulation law which in reality restrains
free trade and perpetuates a cartel, an oligopoly. The Court is merely upholding constitutional adherence to a
truly competitive economy that releases the creative energy of free enterprise.It leaves to Congress, as the
policy-setting agency of the government, the speedy crafting of a genuine, constitutionally justified oil
deregulation law.
MELO, J.,dissenting opinion:
1. REMEDIAL LAW; ACTIONS; POLITICAL QUESTION IS NOT A JUSTICIABLE CONTROVERSY;
IMPOSITION OF DIFFERENT TARIFF RATES ON IMPORTED CRUDE OIL AND IMPORTED REFINED
PETROLEUM PRODUCTS, A POLITICAL QUESTION. The instant petitions do not raise a justiciable
controversy as the issues raised therein pertain to the wisdom and reasonableness of the provisions of the
assailed law.The contentions made by petitioners, that the "imposition of different tariff rates on imported crude
oil and imported refined petroleum products will not foster a truly competitive market, nor will it level the
playing fields" and that said imposition "does not deregulate the downstream oil industry, instead, it controls the
oil industry, contrary to the avowed policy of the law," are clearly policy matters which are within the
province of the political departments of the government. These submissions require a review of issues that are
in the natural of political questions, hence, clearly beyond the ambit of judicial inquiry. cCAIDS
2. CONSTITUTIONAL LAW; POLITICAL QUESTION, CONSTRUED. A political question refers to a
question of policy or to issues 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. Generally, political questions are concerned with issues dependent upon the wisdom,
not the legality, of a particular measure (Taada vs. Cuenco,100 Phil. 101 [1957]).
3. REMEDIAL LAW; ACTIONS; PARTIES; PROPER PARTIES; MEMBERS OF CONGRESS; ASSAILED
ACTS MUST AFFECT OR IMPAIR THEIR RIGHTS AND PREROGATIVES AS LEGISLATORS; CASE
AT BAR. The petitioners do not have the necessary locus standi to file the instant consolidated
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petitions.Petitioners Lagman, Arroyo, Garcia, Taada, and Tatad assail the constitutionality of the above-stated
laws through the instant consolidated petitions in their capacity as members of Congress, and as taxpayers and
concerned citizens. However, the existence of a constitutional issue in a case does not per se confer or clothe a
legislator with locus standi to bring suit. In Phil. Constitution Association (PHILCONSA) vs. Enriquez (235
SCRA 506 [1994]),we held that members of Congress may properly challenge the validity of an official
actof any department of the government only upon showing that the assailed official act affects or impairs their
rights and prerogatives as legislators. In Kilosbayan, Inc.,et al. vs. Morato, et al. (246 SCRA 540 [1995]), this
Court further clarified that "if the complaint is not grounded on the impairment of the power of Congress,
legislators do not have standing to question the validity of any law or official action." Republic Act No.
8180 clearly does not violate or impair prerogatives, powers, and rights ofCongress, or the individual members
thereof, considering that the assailed official act is the very act of Congress itself authorizing the full
deregulation of the downstream oil industry.
4. ID.;ID.;ID.;ID.;AS TAXPAYERS OR CONCERNED CITIZENS; ASSAILED ACTION MUST BE AN
UNCONSTITUTIONAL EXERCISE OF SPENDING POWER OF CONGRESS;
ABSENCE OF ALLEGATION OF ILLEGAL DISBURSEMENT OF PUBLIC MONEY IN CASE AT BAR.
Neither can petitioners sue as taxpayers or concerned citizens. A condition sine qua non for the
institution of a taxpayer's suit is an allegation that the assailed action is an unconstitutional exercise of the
spending powers of Congress or that it constitutes an illegal disbursement of public funds. The instant
consolidated petitions do not allege that the assailed provisions of the law amount to an illegal
disbursement of public money. Hence, petitioners cannot, even as taxpayers or concerned citizens, invoke this
Court's power of judicial review.
5. ID.;ID.;ID.;ID.;ID.;INTEREST OF PERSON ASSAILING THE CONSTITUTIONALITY OF STATUTE
MUST BE DIRECT AND PERSONAL; ABSENCE OF SUCH INTEREST IN CASE AT BAR. Petitioners,
including Flag, FDC, and Sanlakas, can not be deemed proper parties for lack of a particularized interest or
elemental substantial injury necessary to confer on them locus standi.The interest of the person assailing the
constitutionality of a statute must be direct and personal. He must be able to show, not only that the law is
invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he
is about to be subjected to some burdens or penalties by reason of the statute complained of. Petitioners have
not established such kind of interest.
6. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; ONE TITLE-ONE SUBJECT RULE;
PROVISION OF LAW NEED NOT BE EXPRESSED IN THE TITLE OF LAW; PROVISION MUST BE
EMBRACED WITHIN SUBJECT EXPRESSED IN TITLE. Section 5 (b) of Republic Act No. 8180 is not
violative of the "one title-one subject" rule under Section 26 (1), Article VI of the Constitution.It is not required
that a provision of law be expressed in the title thereof as long as the provision in question is embraced within
the subject expressed in the title of the law. The "title of a bill does not have to be a catalogue of its contents and
will suffice if the matters embodied in the text are relevant to each other and may be inferred from the title."
(Association of Small Landowners in the Phils.,Inc. vs. Sec. of Agrarian Reform,175 SCRA 343 [1989]).An "act
having a single general subject, indicated in the title, may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means of carrying out the general
object." (Sinco, Phil. Political Law, 11th ed.,p. 225)
7. ID.; ID.; ID.; ID.; ID.; TARIFF PROVISION IN SEC. 5 (B) OF RA 8180, GERMANE TO THE
PURPOSE OF SAID LAW. The questioned tariff provision in Section 5 (b) was provided as a means to
implement the deregulation of the downstream oil industry and hence, is germane to the purpose of the assailed
law. The general subject ofRepublic Act No. 8180, as expressed in its title, "An Act Deregulating the
Downstream Oil Industry, and for Other Purposes," necessarily implies that the law provides for the means for
such deregulation. One such means is the imposition of the differential tariff rates which are provided to
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encourage new investors as well as existing players to put up new refineries. The aforesaid provision is thus
germane to, and in furtherance of, the object of deregulation. The trend of jurisprudence, ever
sinceSumulong vs. COMELEC (73 Phil. 288 [1941]),is to give the above-stated constitutional requirement a
liberal interpretation. Hence, there is indeed substantial compliance with said requirement.
8. ID.,ID.;ID.;CONFERENCE COMMITTEE; CAN INCLUDE AN AMENDMENT TO A HOUSE OR
SENATE BILL PROVIDED IT IS GERMANE TO THE SUBJECT THEREOF. As regards the power of the
Bicameral Conference Committee to include in its report an entirely new provision that is neither found in the
House bill or Senate bill, this Court already upheld such power in Tolentino vs. Sec. of Finance (235 SCRA 630
[1994]),where we ruled that the conference committee can even include an amendment in the nature of a
substitute so long as such amendment is germane to the subject of the bill before it.
9. ID.;ID.;"ENROLLED BILL THEORY";CONSTRUED. Lastly, in view of the "enrolled bill theory"
pronounced by this Court as early as 1947 in the case of Mabanag vs. Lopez Vito (78 Phil. 1 [1947]),the duly
authenticated copy of the bill, signed by the proper officers of each house, and approved by the President, is
conclusive upon the courts not only of its provisions but also of its due enactment.
10. ID.;ID.;DELEGATION OF LEGISLATIVE POWER; CONSTRUED. Congress may validly provide
that a statute shall take effect or its operation shall be revived or suspended or shall terminate upon the
occurrence of certain events or contingencies the ascertainment of which may be left to some official agency. In
effect, contingent legislation may be issued by the Executive Branch pursuant to a delegation of authority to
determine some fact or state of things upon which the enforcement of a law depends (Cruz, Phil. Political Law,
1996 ed.,p. 96; Cruz vs. Youngberg,56 Phil. 234 [1931]).This is a valid delegation since what the delegate
performs is a matter of detail whereas the statute remains complete in all essential matters. Section 15 falls
under this kind of delegated authority. Notably, the only aspect with respect to which the President can exercise
"discretion" is the determination of whether deregulation may be implemented on or before March, 1997, the
deadline set by Congress. If he so decides, however, certain conditions must first be satisfied, to wit:(1) the
prices of crude oil and petroleum products in the world market are declining, and (2) the exchange rate of the
peso in relation to the US Dollar is stable. Significantly, the so-called "discretion" pertains only to the
ascertainment of the existence of conditions which are necessary for the effectivity of the law and not a
discretion as to what the law shall be.

11. ID; ID.;ID.;SUFFICIENT STANDARDS TEST; COMPLIED WITH IN R.A. 8180. The law satisfies the
sufficient standards test. The words "practicable","declining",and "stable",as used in Section 15 of the assailed
law are sufficient standards that saliently "map out the boundaries of the delegate's authority by defining the
legislative policy and indicating the circumstances under which it is to be pursued and effected." (Cruz, Phil.
Political Law, 1996 ed.,p. 98).Considering the normal and ordinary definitions of these standards, the factors to
be considered by the President and/or Secretary of Energy in implementing full deregulation are, as mentioned,
determinate and determinable.
12. ID.; ID.; R.A. 8180; NOT VIOLATIVE OF CONSTITUTIONAL PROHIBITION AGAINST
MONOPOLIES, COMBINATION OF TRADES AND UNFAIR COMPETITION. The three provisions
relied upon by petitioners (Section 5 [b] on tariff differential, Section 6 on the 40-day minimum inventory
requirement, and Section 9 [b] on the prohibited act of predatory pricing) actually promote, rather than restrain,
free trade and competition. The 4% tariff differential aims to ensure the stable supply ofpetroleum products by
encouraging new entrants to put up oil refineries in the Philippines and to discourage fly-by-night importers. As
regards the 40-day inventory requirement, it must be emphasized that the 10% minimum requirement is based
on the refiners' and importers' annual sales volume, and hence, obviously inapplicable to new entrants as they
do not have an annual sales volume yet. Contrary to petitioners' argument, this requirement is not intended to
discourage new or prospective players in the downstream oil industry. Rather, it guarantees "security and
continuity of petroleum crude and products supply." (Section 6, Republic Act No. 8180). This legal requirement
is meant to weed out entities not sufficiently qualified to participate in the local downstream oil industry.
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Consequently, it is meant to protect the industry from fly-by-night business operators whose sole interest would
be to make quick profits and who may prove unreliable in the effort to provide an adequate and steady
supply of petroleum products in the country. In effect, the aforestated provision benefits not only the three
respondent oil companies but all entities serious and committed to put up storage facilities and to participate as
serious players in the local oil industry. Moreover, it benefits the entire consuming public by its guarantee of an
"adequate continuous supply of environmentally-clean and high-quality petroleum products." It ensures that all
companies in the downstream oil industry operate according to the same high standards, that the necessary
storage and distribution facilities are in place to support the level of business activities involved, and that
operations are conducted in a safe and environmentally sound manner for the benefit of the consuming
public. caHASI
13. ID.; ID.; ID.; NOT VIOLATIVE OF THE EQUAL PROTECTION CLAUSE. The assailed tariff
differential is likewise not violative of the equal protection clause of theConstitution. It is germane to the
declared policy of Republic Act No. 8180 which is to achieve (1) fair prices; and (2) adequate and continuous
supply of environmentally-clean and high quality petroleum products. Said adequate and continuous
supply of petroleum products will be achieved if new investors or players are enticed to engage in the
business of refining crude oil in the country. Existing refining companies, are similarly encouraged to put up
additional refining companies. All of this can be made possible in view of the lower tariff duty on imported
crude oil than that levied on imported refined petroleum products. In effect, the lower tariff rates will enable the
refiners to recoup their investments considering that they will be investing billions of pesos in putting up their
refineries in the Philippines. That incidentally the existing refineries will be benefited by the tariff differential
does not negate the fact that the intended effect of the law is really to encourage the construction of new
refineries, whether by existing players or by new players. cDIHES
14. REMEDIAL LAW; SUPREME COURT; NOT A TRIER OF FACTS. As to the alleged cartel among the
three respondent oil companies, much as we suspect the same, its existence calls for a finding of fact which this
Court is not in the position to make. We cannot be called to try facts and resolve factual issues such as this
(Trade Unions of the Phils. vs. Laguesma,236 SCRA 586 [1994];Ledesma vs. NLRC, 246 SCRA 247 [1995]).
FRANCISCO, J.,dissenting opinion:
1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; LAW-MAKING POWER; ONE SUBJECT-
ONE TITLE RULE; OBJECT OF THE RULE. The Constitution mandates that "every bill passed by
Congress shall embrace only one subject which shall be expressed in the title thereof." The object sought to be
accomplished by this mandatory requirement has been explained by the Court in the vintage case of Central
Capiz v. Ramirez,thus: "The object sought to be accomplished and the mischief proposed to be remedied by this
provision are well known. Legislative assemblies, for the dispatch of business, often pass bills by their titles
only without requiring them to be read. A specious title sometimes covers legislation which, if its real character
had been disclosed, would not have commanded assent. To prevent surprise and fraud on the legislature is
one of the purposes this provision was intended to accomplish. Before the adoption of this provision the
title of a statute was often no indication of its subject or contents.
2. ID.;ID.;ID.;ID.;TO BE GIVEN A PRACTICAL RATHER THAN A TECHNICAL CONSTRUCTION.
The interpretation of "one subject-one title" rule, however, is never intended to impede or stifle legislation. The
requirement is to be given a practical rather than a technical construction and it would be sufficient compliance
if the title expresses the general subject and all the provisions of the enactment are germane and material to the
general subject.
3. ID.;ID.;ID.;ID.;RULE REQUIRES THAT THE TITLE SHOULD NOT COVER LEGISLATION
INCONGRUOUS IN ITSELF. Congress is not required to employ in the title ofan enactment,
language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein.
All that is required is that the title should not cover legislation incongruous in itself, and which by no fair
intendment can be considered as having a necessary or proper connection. Hence, the title "An Act Amending
Certain Sections of Republic Act.
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4. ID; ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, the title "An Act Deregulating The Downstream
Oil Industry, And For Other Purposes" is adequate and comprehensive to cover the imposition of tariff rates.
The tariff provision under Section 5 (b) is one of the means of effecting deregulation. It must be observed that
even prior to the passage of Republic Act No. 8180 oil products have always been subject to tariff and surely
Congress is cognizant of such fact. The imposition of the seven percent (7%) and three percent (3%) duties on
imported gasoline and refined petroleum products and on crude oil, respectively, are germane to the
deregulationof the oil industry. The title, in fact, even included the broad and all-encompassing phrase "And For
Other Purposes" thereby indicating the legislative intent to cover anything that has some relation to or
connection with the deregulation of the oil industry. The tax provision is a mere tool and mechanism considered
essential by Congress to fulfill Republic Act No. 8180's objective of fostering a competitive market and
achieving the social policy objectives of fair prices. To curtail any adverse impact which the tariff treatment
may cause by its application, and perhaps in answer to petitioners' apprehension Congress included under the
assailed section a proviso that will effectively eradicate the tariff difference in the treatment of refined
petroleum products and crude oil by stipulating "that beginning on January 1, 2004 the tariff rate on imported
crude oil and refined petroleum products shall be the same."
5. POLITICAL LAW; POLITICAL QUESTION; ISSUE WHETHER TARIFF FOSTERS A TRULY
COMPETITIVE MARKET, NOT WITHIN THE POWER OF THE COURT TO RESOLVE. The
contention that tariff "does not foster a truly competitive market" and therefore restrains trade and does not help
achieve the purpose of deregulation is an issue not within the power of the Court to resolve. Nonetheless, the
Court's pronouncement in Tio vs. Videogram Regulatory Board appears to be worth reiterating: The power to
impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare
that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which
exercises it. EcDTIH
6. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; LEGISLATIVE BICAMERAL
CONFERENCE COMMITTEE; PERMITTED TO DRAFT ESSENTIALLY A NEW BILL. Any objection
on the validity of provisions inserted by the legislative bicameral conference committee has been passed upon
by the Court in the recent case of Tolentino v.Secretary of Finance,which, in my view, laid to rest any doubt as
to the validity of the bill emerging out of a Conference Committee. The Court in that case, speaking through
Mr. Justice Mendoza, said: "As to the possibility of an entirely new bill emerging out of a Conference
Committee, it has been explained: 'Under Congressional rules of procedure, conference committees are not
expected to make any material change in the measure at issue, either by deleting provisions to which both
houses have already agreed or by inserting new provisions. But this is a difficult provision to enforce. Note the
problem when one house amends a proposal originating in either house by striking out everything following the
enacting clause and substituting provisions which make it an entirely new bill. The versions are now altogether
different, permitting a conference committee to draft essentially a new bill. ..' "

7. ID.; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; CLASSIFICATION BASED ON

SUBSTANTIAL DISQUALIFICATIONS; CASE AT BAR. The other contention ofpetitioners that Section
5(b) "violates the equal protection of the laws enshrined in Article III, Section 1 of the Constitution" deserves a
short shrift for the equal protection clause does not forbid reasonable classification based upon substantial
distinctions where the classification is germane to the purpose of the law and applies equally to all the
members of the class. The imposition of three percent (3%) tariff on crude oil, which is four percent (4%) lower
than those imposed on refined oil products, as persuasively argued by the Office of the Solicitor General, is
based on the substantial distinction that importers of crude oil, by necessity, have to establish and maintain
refinery plants to process and refine the crude oil thereby adding to their production costs. To encourage these
importers to set up refineries involving huge expenditures and investments which peddlers and
importers of refined petroleum products do not shoulder, Congress deemed it appropriate to give a lower tariff
rate to foster the entry of new "players" and investors in line with the law's policy to create a competitive
market. The residual contention that there is no substantial distinction in the imposition of seven percent (7%)
276
and three percent (3%) tariff since the law itself will level the tariff rates between the imported crude oil and
refined petroleum products come January 1, 2004, to my mind, is addressed more to the legislative's prerogative
to provide for the duration and period of effectivity of the imposition. If Congress, after consultation,
analysis of material data and due deliberations, is convinced that by January 1, 2004, the investors and
importers of crude oil would have already recovered their huge investments and expenditures in establishing
refineries and plants then it is within its prerogative to lift the tariff differential. Such matter is well within the
pale of legislative power which the Court may not fetter. Besides, this again is in line with Republic Act No.
8180's avowed policy to foster a truly competitive market which can achieve the social policy objectives of fair,
if not lower, prices.
8. ID.;POLITICAL QUESTION; QUERY ON WHY LOWERING OF PRICES OF OIL PRODUCTS
SHOULD BE PENALIZED, NOT FOR THIS COURT TO TRAVERSE. The query on why
lowering of prices should be penalized and the broad scope of predatory pricing is not for this Court to traverse
the same being reserved for Congress. The Court should not lose sight of the fact that its duty under Article
5 of the Revised Penal Code is not to determine, define and legislate what act or acts should be penalized, but
simply to report to the Chief Executive the reasons why it believes an act should be penalized, as well as why it
considers a penalty excessive.
9. ID.;LEGISLATIVE DEPARTMENT; DELEGATION OF POWER; TEST. The settled rule is that the
legislative department may not delegate its power. Any attempt to abdicate it is unconstitutional and void, based
on the principle of potestas delegata non delegare potest.In testing whether a statute constitutes an undue
delegation oflegislative power or not, it is usual to inquire whether the statute was complete in all its terms and
provisions when it left the hands of the legislative so that nothing was left to the judgment of any other
appointee or delegate of the legislature. An enactment is said to be incomplete and invalid if it does not lay
down any rule or definite standard by which the administrative officer may be guided in the exercise of the
discretionary powers delegated to it.
10. ID.;ID.;ID.;GUIDELINE ON HOW TO DISTINGUISH WHICH POWER MAY OR MAY NOT BE
DELEGATED. In People v. Vera,the Court laid down a guideline on how to distinguish which power may or
may not be delegated by Congress, to wit: " 'The true distinction,' said Judge Ranney, 'is between the
delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and
conferring an authority or discretion as to its execution, to be exercised under and in pursuance ofthe law. The
first cannot be done; to the latter no valid objection can be made.' (Cincinnati, W. & Z.R. Co. vs. Clinton County
Comrs.[1852];1 Ohio St.,77, 88 See also,Sutherland on Statutory Construction, Sec. 68.)"
11. ID.;ID.;ID.;THERE IS NOTHING LEGISLATIVE IN ASCERTAINING THE EXISTENCE OF FACTS
OR CONDITIONS AS BASIS OF EFFICACY OF LAW. Applying these parameters, J. Francisco fails to
see any taint of unconstitutionality that could vitiate the validity of Section 15. The discretion to ascertain when
may the prices of crude oil in the world market be deemed "declining" or when may the peso-dollar exchange
rate be considered "stable" relates to the assessment and appreciation of facts. There is nothing essentially
legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law so as
to make the provision an undue delegation of legislative power.
12. ID.,ID.;ID.;NO UNDUE DELEGATION BY ABSENCE OF LACK OF DEFINITIONS OF TERMS.
The alleged lack of definitions of the terms employed in the statute does not give rise to undue delegation either
for the words of the statute, as a rule, must be given its literal meaning.
13. ID.;ID.;WITH LATITUDE TO PROVIDE THAT LAW MAY TAKE EFFECT UPON
HAPPENING OF FUTURE CONTINGENCY. Petitioners' contentions are concerned with the
details of execution by the executive officials tasked to implement deregulation. No proviso in Section 15 may
be construed as objectionable for the legislature has the latitude to provide that a law may take effect upon the
happening of future specified contingencies leaving to some other person or body the power to determine when
the specified contingency has arisen.

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14. ID.; EXECUTIVE DEPARTMENT; EXECUTIVE ORDER NO. 392, CONSTITUTIONAL. The
policy of Republic Act No. 8180 is to deregulate the downstream oil industry and to foster a truly competitive
market which could lead to fair prices and adequate supply of environmentally clean and high-quality petroleum
products. This is the guiding principle installed by Congress upon which the executive department of the
government must conform. Section 15 of Republic Act No. 8180 sufficiently supplied the metes and bounds for
the execution of full deregulation. In fact, a cursory reading of Executive Order No. 392 which advanced
deregulation to February 8, 1997 convincingly shows the determinable factors or standards, enumerated under
Section 15, which were taken into account by the Chief Executive in declaring full deregulation. J. Francisco
cannot see his way clear on how or why Executive Order No. 392, as professed by petitioners, may be declared
unconstitutional for adding the "depletion of buffer fund" as one of the grounds for advancing the deregulation.
The enumeration of factors to be considered for full deregulation under Section 15 did not proscribe the Chief
Executive from acknowledging other instances that can equally assuage deregulation. What is important is that
the Chief Executive complied with and met the minimum standards supplied by the law. Executive Order No.
392 may not, therefore, be branded as unconstitutional.
15. ID.;POLITICAL QUESTION; MATTERS WHICH FUNDAMENTALLY STRIKE AT THE
WISDOM OF THE LAW AND THE POLICY ADOPTED BY CONGRESS. Petitioners' vehement
objections on the short seven (7) month transition period under Section 15 and the alleged resultant de
facto formation of cartel are matters which fundamentally strike at the wisdom of the law and the policy
adopted by Congress. These are outside the power of the courts to settle; thus J. Francisco fails to see the need
to digress any further.
16. REMEDIAL LAW; SUPREME COURT; ISSUE PERTAINING TO THE
EFFICACY OF INCORPORATING IN THE LAW ADMINISTRATIVE SANCTIONS, OUTSIDE THE
COURT'S SPHERE AND COMPETENCE. The administrative fine under Section 20 is claimed to be
inconsistent with deregulation. The imposition of administrative fine for failure to meet the reportorial and
minimum inventory requirements, far from petitioners' submission, are geared towards accomplishing the noble
purpose of the law. The inventory requirement ensures the security and continuity of petroleum crude and
products supply, while the reportorial requirement is a mere devise for theDepartment of Energy to monitor
compliance with the law. In any event, the issue pertains to the efficacy of incorporating in the law the
administrative sanctions which lies outside the Court's sphere and competence.
17. CONSTITUTIONAL LAW; SEPARATION OF POWERS; ISSUE OF WHETHER OR NOT THE LAW
FAILED TO ACHIEVE ITS POLICY, MATTER CLEARLY BEYOND THIS COURT'S DOMAIN.
Nothing is so fundamental in our system of government than its division into three distinct and independent
branches, the executive, the legislative and the judiciary, each branch having exclusive cognizance of matters
within its jurisdiction, and supreme within its own sphere. It is true that there is sometimes an inevitable
overlapping and interlacing of functions and duties between these departments. But this elementary tenet
remains: the legislative is vested with the power to make law, the judiciary to apply and interpret it. In cases like
this, "the judicial branch of the government has only one duty to lay the article of theConstitution which is
invoked beside the statute which is challenged and to decide whether the latter squares with the former." This
having been done and finding no constitutional infirmity therein, the Court's task is finished. Now whether or
not the law fails to achieve its avowed policy because Congress did not carefully evaluate the long term
effects of some of its provisions is a matter clearly beyond this Court's domain.
18. REMEDIAL LAW; COURTS; WILL RESOLVE EVERY PRESUMPTION IN FAVOR OF STATUTES'
VALIDITY. The question of validity of every statute is first determined by the legislative department of the
government, and the courts will resolve every presumption in favor of its validity. The courts will assume that
the validity of the statute was fully considered by the legislature when adopted. The wisdom of advisability of a
particular statute is not a question for the courts to determine. If a particular statute is within the constitutional
power of the legislative to enact, it should be sustained whether the courts agree or not in the wisdom of its
enactment. This Court continues to recognize that in the determination of actual cases and controversies, it must
reflect the wisdom and justice of the people as expressed through their representatives in the executive and
278
legislative branches of government. Thus, the presumption is always in favor of constitutionality for it is
likewise always presumed that in the enactment of a law or the adoption of a policy it is the people who speak
through their representatives. This principle is one of caution and circumspection in the exercise of the grave
and delicate function of judicial review. aSCHIT

DECISION

PUNO, J p:

The petitions at bar challenge the constitutionality of Republic Act No. 8180 entitled "An Act Deregulating the
Downstream Oil Industry and For Other Purposes". 1 R.A. No. 8180 ends twenty six (26) years of government
regulation of the downstream oil industry. Few cases carry a surpassing importance on the life of every Filipino
as these petitions for the upswing and downswing of our economy materially depend on the
oscillation of oil. prcd
First, the facts without the fat. Prior to 1971, there was no government agency regulating the oil industry other
than those dealing with ordinary commodities. Oil companies were free to enter and exit the market without any
government interference There were four (4) refining companies (Shell, Caltex, Bataan Refining Company and
Filoil Refining) and six (6) petroleum marketing companies (Esso, Filoil, Caltex, Getty, Mobil and Shell), then
operating in the country. 2
In 1971, the country was driven to its knees by a crippling oil crisis. The government, realizing that petroleum
and its products are vital to national security and that their continued supply at reasonable prices is essential to
the general welfare, enacted the Oil Industry Commission Act. 3 It created the Oil Industry Commission (OIC)
toregulate the business of importing, exporting, re-exporting, shipping, transporting, processing, refining,
storing, distributing, marketing and selling crude oil, gasoline, kerosene, gas and other refined petroleum
products. The OIC was vested with the power to fix the market prices of petroleum products, to regulate the
capacities ofrefineries, to license new refineries and to regulate the operations and trade practices of the
industry. 4
In addition to the creation of the OIC, the government saw the imperious need for a more active
role of Filipinos in the oil industry. Until the early seventies, the downstream oil industry was controlled by
multinational companies.All the oil refineries and marketing companies were owned by foreigners whose
economic interests did not always coincide with the interest of the Filipino. Crude oil was transported to the
country by foreign-controlled tankers. Crude processing was done locally by foreign-owned refineries and
petroleum products were marketed through foreign-owned retail outlets. On November 9, 1973, President
Ferdinand B. Marcos boldly created the Philippine National Oil Corporation (PNOC) to break the control by
foreigners of our oil industry. 5 PNOC engaged in the business of refining, marketing, shipping, transporting,
and storing petroleum. It acquired ownership of ESSO Philippines and Filoil to serve as its marketing arm. It
bought the controlling shares ofBataan Refining Corporation, the largest refinery in the country. 6 PNOC later
put up its own marketing subsidiary Petrophil. PNOC operated under the business name PETRON
Corporation. For the first time, there was a Filipino presence in the Philippine oil market.
In 1984, President Marcos through Section 8 of Presidential Decree No. 1956, created the Oil Price
Stabilization Fund (OPSF) to cushion the effects of frequent changes in the price of oil caused by exchange rate
adjustments or increase in the world market prices of crude oil and imported petroleum products. The fund is
used (1) to reimburse the oil companies for cost increases in crude oil and imported petroleum products
resulting from exchange rate adjustment and/or increase in world market prices of crude oil, and (2) to

279
reimburse oil companies for cost underrecovery incurred as a result of the reduction of domestic
prices of petroleum products. Under the law, the OPSF may be sourced from:
1. any increase in the tax collection from ad valorem tax or customs duty imposed on
petroleum products subject to tax under P.D. No. 1956 arising from exchange rate
adjustment,
2. any increase in the tax collection as a result of the lifting of tax exemptions of government
corporations, as may be determined by the Minister of Finance in consultation with the
Board of Energy,
3. any additional amount to be imposed on petroleum products to augment the resources of the
fund through an appropriate order that may be issued by the Board of Energy requiring
payment of persons or companies engaged in the business of importing, manufacturing
and/or marketing petroleum products, or
4. any resulting peso costs differentials in case the actual peso costs paid by oil companies in
the importation of crude oil and petroleum products is less than the peso costs
computed using the reference foreign exchange rate as fixed by the Board of Energy. 7
By 1985,only three (3) oil companies were operating in the country Caltex, Shell and the government-owned
PNOC.
In May, 1987,President Corazon C. Aquino signed Executive Order No. 172 creating the Energy Regulatory
Board to regulate the business of importing, exporting, re-exporting, shipping, transporting, processing,
refining, marketing and distributing energy resources "when warranted and only when public necessity
requires." The Board had the following powers and functions:
1. Fix and regulate the prices of petroleum products;
2. Fix and regulate the rate schedule or prices of piped gas to be charged by duly franchised gas
companies which distribute gas by means of underground pipe system;
3. Fix and regulate the rates of pipeline concessionaries under the provisions of R.A. No. 387,
as amended . . .;
4. Regulate the capacities of new refineries or additional capacities of existing refineries and
license refineries that may be organized after the issuance of (E.O. No. 172) under such
terms and conditions as are consistent with the national interest; and
5. Whenever the Board has determined that there is a shortage of any petroleum product, or
when public interest so requires, it may take such steps as it may consider necessary,
including the temporary adjustment of the levels of prices of petroleum products and
the payment to the Oil Price Stabilization Fund ...by persons or entities engaged in the
petroleum industry of such amounts as may be determined by the Board, which may
enable the importer to recover its cost ofimportation. 8
On December 9, 1992, Congress enacted R.A. No. 7638 which created the Department of Energy to prepare,
integrate, coordinate, supervise and control all plans, programs, projects, and activities of the government in
relation to energy exploration, development, utilization, distribution and conservation. 9 The thrust of the
Philippine energy program under the law was toward privatization of government agencies related
to energy, deregulation of the power and energy industry and reduction of dependency on oil-fired
plants. 10 The law also aimed to encourage free and active participation and investment by the private sector in
all energy activities.Section 5(e) of the law states that "at the end of four (4) years from the effectivity of this
Act, the Department shall, upon approval of the President, institute the programs
and timetable of deregulation of appropriate energy projects and activities of the energy industry."
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Pursuant to the policies enunciated in R.A. No. 7638, the government approved the privatization of Petron
Corporation in 1993. On December 16, 1993, PNOC sold 40%of its equity in Petron Corporation to the Aramco
Overseas Company. LexLib
In March 1996,Congress took the audacious step of deregulating the downstream oil industry.It
enacted R.A. No. 8180, entitled the "Downstream Oil Industry Deregulation Act of 1996." Under the
deregulated environment, "any person or entity may import or purchase any quantity of crude oil and petroleum
products from a foreign or domestic source, lease or own and operate refineries and other downstream oil
facilities and market such crude oil or use the same for his own requirement," subject only to monitoring by
the Department of Energy. 11
The deregulation process has two phases: the transition phase and the full deregulation phase.During the
transition phase, controls of the non-pricing aspects of the oil industry were to be lifted. The following were to
be accomplished: (1) liberalization of oil importation, exportation, manufacturing, marketing and distribution,
(2) implementation of an automatic pricing mechanism, (3) implementation of an automatic formula to set
margins of dealers and rates of haulers, water transport operators and pipeline concessionaires, and (4)
restructuring of oil taxes. Upon full deregulation, controls on the price of oil and the foreign exchange cover
were to be lifted and the OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full deregulation of the Downstream Oil Industry through
E.O. No.392.
The petitions at bar assail the constitutionality of various provisions of R.A. No. 8180 and E.O. No. 392.
In G.R. No. 124360,petitioner Francisco S. Tatad seeks the annulment of section 5 (b) of R.A. No.
8180. Section 5 (b) provides:
"b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff
duty shall be imposed and collected on imported crude oil at the rateof three percent (3%) and
imported refined petroleum products at the rate of seven percent (7%),except fuel oil and LPG,
the rate for which shall be the same as that for imported crude oil: Provided, That beginning on
January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be
the same: Provided, further, That this provision may be amended only by an Act of Congress."
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil and imported refined petroleum products
violates the equal protection clause. Petitioner contends that the 3%-7% tariff differential unduly favors the
three existing oil refineries and discriminates against prospective investors in the downstream oil industry who
do not have their own refineries and will have to source refined petroleum products from abroad.

Second, that the imposition of different tariff rates does not deregulate the downstream oil industry but instead
controls the oil industry, contrary to the avowed policyof the law. Petitioner avers that the tariff differential
between imported crude oil and imported refined petroleum products bars the entry of other players in the oil
industry because it effectively protects the interest of oil companies with existing refineries. Thus, it runs
counter to the objective of the law "to foster a truly competitive market."
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180 violates Section 26(1) Article
VI of the Constitution requiring every law to have only one subject which shall be expressed in its title.
Petitioner contends that the imposition of tariff rates in section 5(b) of R.A. No. 8180 is foreign to the
subject of the law which is the deregulation of the downstream oil industry.

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In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique Garcia, Wigberto Taada, Flag
Human Rights Foundation, Inc., Freedom from Debt Coalition (FDC) and Sanlakas contest the
constitutionality of section 15 of R.A. No. 8180 and E.O. No. 392. Section 15 provides:
"Sec. 15. Implementation of Full Deregulation. Pursuant to Section 5(e) of Republic Act
No. 7638, the DOE shall, upon approval of the President, implement the full
deregulation of the downstream oil industry not later than March 1997. As far as practicable,
the DOE shall time the full deregulation when the prices of crude oil and petroleum products in
the world market are declining and when the exchange rate of the peso in relation to the US
dollar is stable. Upon the implementation ofthe full deregulation as provided herein, the
transition phase is deemed terminated and the following laws are deemed repealed:
xxx xxx xxx
E.O. No. 392 states in full, viz.:
"WHEREAS, Republic Act No. 7638, otherwise known as the
"Department of Energy Act of 1992, " provides that, at the end of four years from its effectivity
last December 1992, "the Department (of Energy) shall, upon approval of the President,
institute the programs and time table of deregulation of appropriate energyprojects and
activities of the energy sector;
"WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the "Downstream Oil
Industry Deregulation Act of 1996," provides that "the DOE shall, upon approval of the
President, implement full deregulation of the downstream oil industry not later than March,
1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude
oil and petroleum products in the world market are declining and when the exchange rate of the
peso in relation to the US dollar is stable;
"WHEREAS, pursuant to the recommendation of the Department of Energy, there is an
imperative need to implement the full deregulation of the downstream oil industry
because of the following recent developments: (i) depletion of the buffer fund on or about 7
February 1997 pursuant to the Energy Regulatory Board's Order dated 16 January 1997; (ii) the
prices of crude oil had been stable at $21-$23 per barrel since October 1996 while
prices of petroleum products in the world market had been stable since mid-December of last
year. Moreover, crude oil prices are beginning to soften for the last few days while
prices of some petroleum products had already declined; and (iii) the exchange rate of the peso
in relation to the US dollar has been stable for the past twelve (12) months, averaging at around
P26.20 to one US dollar;
"WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional
framework for the administration of the deregulated industry by defining the functions and
responsibilities of various government agencies;
"WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a
truly competitive market which can better achieve the social policy objectives of fair prices and
adequate, continuous supply of environmentally-clean and high quality petroleum products;
"NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by
the powers vested in me by law, do hereby declare the full deregulation of the downstream oil
industry."
In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation of legislative power to the President and
the Secretary of Energy because it does not provide a determinate or determinable standard to guide the
282
Executive Branch in determining when to implement the full deregulation of the downstream oil industry.
Petitioners contend that the law does not define when it is practicable for the Secretary of Energy to recommend
to the President the full deregulation of the downstream oil industry or when the President may consider it
practicable to declare full deregulation. Also, the law does not provide any specific standard to determine when
the prices of crude oil in the world market are considered to be declining nor when the exchange rate of the peso
to the US dollar is considered stable.
Second, petitioners aver that E.O. No. 392 implementing the full deregulation of the downstream oil industry is
arbitrary and unreasonable because it was enacted due to the alleged depletion of the OPSF fund a condition
not found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of a de facto cartel among the three
existing oil companies Petron, Caltex and Shell in violation of the constitutional prohibition against
monopolies, combinations in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the constitutionality of R.A. No. 8180 and E.O. No. 392. In
addition, respondents contend that the issues raised by the petitions are not justiciable as they pertain to the
wisdom of the law. Respondents further aver that petitioners have no locus standi as they did not sustain nor
will they sustain direct injury as a result of the implementation of R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On October 7, 1997, the Court ordered the
private respondents oil companies "to maintain the status quo and to cease and desist from increasing the
prices of gasoline and other petroleum fuel products for a period of thirty (30) days ...subject to further orders as
conditions may warrant."
We shall now resolve the petitions on the merit. The petitions raise procedural and substantive issues bearing on
the constitutionality of R.A. No. 8180 and E.O. No. 392. The procedural issues are: (1) whether or not the
petitions raise a justiciable controversy, and (2) whether or not the petitioners have the standing to assail the
validityof the subject law and executive order. The substantive issues are: (1) whether or not section 5(b)
violates the one title one subject requirement of the Constitution; (2) whether or not the same section violates
the equal protection clause of the Constitution; (3) whether or not section 15 violates the constitutional
prohibition on undue delegation of power; (4) whether or not E.O. No. 392 is arbitrary and unreasonable; and
(5) whether or not R.A. No. 8180 violates the constitutional prohibition against monopolies, combinations in
restraint of trade and unfair competition.
We shall first tackle the procedural issues. Respondents claim that the avalanche of arguments of the petitioners
assail the wisdom of R.A. No. 8180. They aver that deregulation of the downstream oil industry is a policy
decision made by Congress and it cannot be reviewed, much less be reversed by this Court. In constitutional
parlance, respondents contend that the petitions failed to raise a justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes not only the duty of the courts to settle
actual controversies involving rights which are legally demandable and enforceable, but also the duty to
determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government. 12 The courts, as guardians of the Constitution,
have the inherent authority to determine whether a statute enacted by the legislature transcends the limit
imposed by the fundamental law. Where a statute violates the Constitution, it is not only the right but the
duty of the judiciary to declare such act as unconstitutional and void. 13 We held in the recent
case of Taada v. Angara: 14
"xxx xxx xxx
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is
283
 judicial rather than political. The duty to adjudicate remains to assure that the
supremacy of the Constitution is upheld. Once a controversy as to the application or
interpretation of a constitutional provision is raised before this Court, it becomes a legal issue
which the Court is bound by constitutional mandate to decide."
Even a sideglance at the petitions will reveal that petitioners have raised constitutional issues which deserve the
resolution of this Court in view of their seriousness and their value as precedents. Our statement of facts and
definition of issues clearly show that petitioners are assailing R.A. No. 8180 because its provisions infringe
theConstitution and not because the law lacks wisdom. The principle of separation of power mandates that
challenges on the constitutionality of a law should be resolved in our courts of justice while doubts on the
wisdom of a law should be debated in the halls of Congress. Every now and then, a law may be denounced in
court both as bereft of wisdom and constitutionally infirmed. Such denunciation will not deny this Court of its
jurisdiction to resolve the constitutionality of the said law while prudentially refusing to pass on its
wisdom. cdrep

The effort of respondents to question the locus standi of petitioners must also fall on barren ground.
In language too lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus
standi where the petitioner is able to craft an issue of transcendental significance to the
people. 15 In Kapatiran ngmga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 16 we stressed:
"xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality, standing or interest are,
however, in the main procedural matters. Considering the importance to the public of the cases
at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether
or not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused the discretion given to
them, the Court has brushed aside technicalities ofprocedure and has taken cognizance of these
petitions."
There is not a dot of disagreement between the petitioners and the respondents on the far reaching
importance of the validity of RA No. 8180 deregulating our downstream oil industry. Thus, there is no good
sense in being hypertechnical on the standing of petitioners for they pose issues which are significant to our
people and which deserve our forthright resolution.
We shall now track down the substantive issues. In G.R. No. 124360 where petitioner is Senator Tatad, it is
contended that section 5(b) of R.A. No. 8180 on tariff differential violates the
provision 17 of the Constitution requiring every law to have only one subject which should be expressed in its
title. We do not concur with this contention. As a policy, this Court has adopted a liberal construction of the one
title - one subject rule. We have consistently ruled 18 that the title need not mirror, fully index or catalogue all
contents and minute details of a law. A law having a single general subject indicated in the title may contain any
number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to
the general subject, and may be considered in furtherance of such subject by providing for the method and
means of carrying out the general subject. 19 We hold that section 5(b) providing for tariff differential is
germane to the subject of R.A. No. 8180 which is the deregulation of the downstream oil industry. The section
is supposed to sway prospective investors to put up refineries in our country and make them rely less on
imported petroleum. 20 We shall, however, return to the validity of this provision when we examine its
blocking effect on new entrants to the oil market.
We shall now slide to the substantive issues in G.R. No. 127867. Petitioners assail section 15 of R.A. No. 8180
which fixes the time frame for the full deregulation of the downstream oil industry. We restate its pertinent
portion for emphasis, viz.:

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 "Sec. 15. Implementation of Full Deregulation. Pursuant to section 5(e) of Republic Act No.
7638, the DOE shall, upon approval of the President, implement the full deregulation of the
downstream oil industry not later than March 1997. As far as practicable,the DOE shall time
the full deregulation when the prices of crude oil and petroleum products in the world market
are declining and when the exchange rate of the peso in relation to the US dollar is stable..."
Petitioners urge that the phrases "as far as practicable," "decline of crude oil prices in the world market" and
"stability of the peso exchange rate to the US dollar" are ambivalent, unclear and inconcrete in meaning. They
submit that they do not provide the "determinate or determinable standards" which can guide the President in
his decision to fully deregulate the downstream oil industry. In addition, they contend that E.O. No. 392 which
advanced the date of full deregulation is void for it illegally considered the depletion of the OPSF fund as a
factor.
The power of Congress to delegate the execution of laws has long been settled by this Court. As early as 1916
in Compaia General de Tabacos de Filipinas vs. The Board of Public Utility Commissioners, 21 this Court
thru, Mr. Justice Moreland, held that "the true distinction is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid
objection can be made." Over the years, as the legal engineering of men's relationship became more difficult,
Congress has to rely more on the practice of delegating the execution of laws to the executive and other
administrative agencies. Two tests have been developed to determine whether the delegation of the power to
execute laws does not involve the abdication of the power to make law itself. We delineated the metes and
bounds of these tests inEastern Shipping Lines, Inc. vs. POEA, 22 thus:
"There are two accepted tests to determine whether or not there is a valid
delegation of legislative power, viz.:the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it leaves the
legislative such that when it reaches the delegate the only thing he will have to do is to enforce
it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law
to map out the boundaries of the delegate's authority and prevent the delegation from running
riot. Both tests are intended to prevent a total transference of legislative authority to the
delegate, who is not allowed to step into the shoes of the legislature and exercise a power
essentially legislative."
The validity of delegating legislative power is now a quiet area in our constitutional landscape. As sagely
observed, delegation of legislative power has become an inevitability in light of the increasing
complexity of the task of government. Thus, courts bend as far back as possible to sustain the
constitutionality of laws which are assailed as unduly delegating legislative powers.
Citing Hirabayashi v. United States 23 as authority, Mr. Justice Isagani A. Cruz states "that even if the law does
not expressly pinpoint the standard, the courts will bend over backward to locate the same elsewhere in order to
spare the statute, if it can, from constitutional infirmity." 24
Given the groove of the Court's rulings, the attempt of petitioners to strike down section 15 on the
ground of undue delegation of legislative power cannot prosper. Section 15 can hurdle both the completeness
test and the sufficient standard test. It will be noted that Congress expressly provided in R.A. No. 8180 that full
deregulation will start at the end of March 1997, regardless of the occurrence of any event. Full deregulation at
the end of March 1997 is mandatory and the Executive has no discretion to postpone it for any purported
reason. Thus, the law is complete on the question of the final date of full deregulation. The discretion given to
the President is to advance the date of full deregulation before the end of March 1997. Section 15 lays down the
standard to guide the judgment of the President he is to time it as far as practicable when the prices of crude
oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation
to the US dollar is stable.

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Petitioners contend that the words "as far as practicable," "declining" and "stable" should have been defined in
R.A. No. 8180 as they do not set determinate or determinable standards. The stubborn submission deserves
scant consideration. The dictionary meanings of these words are well settled and cannot confuse
men ofreasonable intelligence. Webster defines "practicable" as meaning possible to practice or perform,
"decline" as meaning to take a downward direction, and "stable" as meaning firmly established. 25 The
fear of petitioners that these words will result in the exercise of executive discretion that will run riot is thus
groundless. To be sure, the Court has sustained the validity of similar, if not more general standards in other
cases. 26
It ought to follow that the argument that E.O. No. 392 is null and void as it was based on indeterminate
standards set by R.A. 8180 must likewise fail. If that were all to the attack against the validity of E.O. No. 392,
the issue need not further detain our discourse. But petitioners further posit the thesis that the Executive
misapplied R.A. No. 8180 when it considered the depletion of the OPSF fund as a factor in fully deregulating
the downstream oil industry in February 1997. A perusal of section 15 ofR.A. No. 8180 will readily reveal that
it only enumerated two factors to be considered by the Department of Energy and the Office of the
President, viz.: (1) the time when the prices of crude oil and petroleum products in the world market are
declining, and (2) the time when the exchange rate of the peso in relation to the US dollar is stable. Section 15
did not mention the depletion of the OPSF fund as a factor to be given weight by the Executive before ordering
full deregulation. On the contrary, the debates in Congress will show that some of our legislators wanted to
impose as a pre-condition to deregulation a showing that the OPSF fund must not be in deficit.27 We therefore
hold that the Executive department failed to follow faithfully the standards set by R.A. No. 8180 when it
considered the extraneous factor of depletion ofthe OPSF fund. The misappreciation of this extra factor cannot
be justified on the ground that the Executive department considered anyway the stability of the prices ofcrude
oil in the world market and the stability of the exchange rate of the peso to the dollar. By considering another
factor to hasten full deregulation, the Executivedepartment rewrote the standards set forth in R.A. 8180. The
Executive is bereft of any right to alter either by subtraction or addition the standards set in R.A. No. 8180 for it
has no power to make laws. To cede to the Executive the power to make law is to invite tyranny, indeed, to
transgress the principle of separation of powers. The exercise of delegated power is given a strict scrutiny by
courts for the delegate is a mere agent whose action cannot infringe the terms of agency. In the cases at bar, the
Executive co-mingled the factor of depletion of the OPSF fund with the factors of decline of the price of crude
oil in the world market and the stability of the peso to the US dollar. On the basis of the text of E.O. No. 392, it
is impossible to determine the weight given by the Executive department to the depletion of the OPSF fund. It
could well be the principal consideration for the early deregulation. It could have been accorded an equal
significance. Or its importance could be nil. In light of this uncertainty, we rule that the early deregulation
under E.O. No. 392 constitutes a misapplication of R.A. No. 8180.

We now come to grips with the contention that some provisions of R.A. No. 8180 violate section 19 of Article
XII of the 1987 Constitution. These provisions are:
(1) Section 5 (b) which states "Any law to the contrary notwithstanding and starting with
the effectivity of this Act, tariff duty shall be imposed and collected on imported crude
oil at the rate of three percent (3%) and imported refined petroleum products at the
rate of seven percent (7%) except fuel oil and LPG, the rate for which shall be the same
as that for imported crude oil. Provided, that beginning on January 1, 2004 the tariff
rate on imported crude oil and refined petroleum products shall be the same. Provided,
further, that this provision may be amended only by an Act of Congress."
(2) Section 6 which states "To ensure the security and continuity of petroleum crude and
products supply, the DOE shall require the refiners and importers to maintain a
minimum inventory equivalent to ten percent (10%) of their respective annual sales
volume or forty (40) days of supply, whichever is lower," and cdphil
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 (3) Section 9 (b) which states "To ensure fair competition and prevent cartels and
monopolies in the downstream oil industry, the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to sell any product at a price
unreasonably below the industry average cost so as to attract customers to the
detriment of competitors."
On the other hand, section 19 of Article XII of the Constitution allegedly violated by the aforestated
provisions of R.A. No. 8180 mandates: "The State shall regulate or prohibit monopolies when the public interest
so requires. No combinations in restraint of trade or unfair competition shall be allowed."
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting in the
exclusive right or power to carry on a particular business or trade, manufacture a particular article, or control the
sale or the whole supply of a particular commodity. It is a form of market structure in which one or only a few
firms dominate the total sales of a product or service. 28 On the other hand, a combination in restraint of trade is
an agreement or understanding between two or more persons, in the form of a contract, trust, pool, holding
company, or other form of association, for the purpose of unduly restricting competition, monopolizing trade
and commerce in a certain commodity, controlling its production, distribution and price, or otherwise
interfering with freedom of trade without statutory authority. 29Combination in restraint of trade refers to the
means while monopoly refers to the end. 30
Article 186 of the Revised Penal Code and Article 28 of the New Civil Code breathe life to this constitutional
policy. Article 186 of the Revised Penal Code penalizes monopolization and creation of combinations in
restraint of trade, 31 while Article 28 of the New Civil Code makes any person who shall engage in unfair
competition liable for damages. 32
Respondents aver that sections 5(b),6 and 9(b) implement the policies and objectives of R.A. No. 8180. They
explain that the 4% tariff differential is designed to encourage new entrants to invest in refineries. They stress
that the inventory requirement is meant to guaranty continuous domestic supply of petroleum and to discourage
fly-by-night operators. They also submit that the prohibition against predatory pricing is intended to protect
prospective entrants. Respondents manifested to the Court that new players have entered the Philippines after
deregulation and have now captured 3%-5% of the oil market.
The validity of the assailed provisions of R.A. No. 8180 has to be decided in light of the letter and spirit of our
Constitution,especially section 19, Article XII. Beyond doubt, the Constitution committed us to the free
enterprise system but it is a system impressed with its own distinctness. Thus, while the Constitution embraced
free enterprise as an economic creed, it did not prohibit per se the operation of monopolies which can, however
be regulated in the public interest. 33 Thus too, our free enterprise system is not based on a market of pure and
unadulterated competition where the State pursues a strict hands-off policy and follows the let-the-devil devour
the hindmost rule. Combinations in restraint of trade and unfair competitions are absolutely proscribed and the
proscription is directed both against the State as well as the private sector. 34 This distinct free enterprise
system is dictated by the need to achieve the goals of our national economy as defined by section 1, Article
XII of theConstitution which are: more equitable distribution of opportunities, income and wealth; a sustained
increase in the amount of goods and services produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life for all, especially the underprivileged. It also calls
for the State to protect Filipino enterprises against unfair competition and trade practices.
Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition. The
desirability of competition is the reason for the prohibition against restraint of trade, the reason for the
interdiction of unfair competition, and the reason for regulation of unmitigated monopolies. Competition is thus
the underlying principle of section 19, Article XII of our Constitution which cannot be violated by R.A. No.
8180. We subscribe to the observation of Prof. Gellhorn that the objective of anti-trust law is "to assure a

287
competitive economy, based upon the belief that through competition producers will strive to satisfy consumer
wants at the lowest price with the sacrifice of the fewest resources. Competition among producers allows
consumers to bid for goods and services, and thus matches their desires with society's opportunity costs." 35 He
adds with appropriateness that there is a reliance upon "the operation of the 'market' system (free enterprise) to
decide what shall be produced, how resources shall be allocated in the production process, and to whom the
various products will be distributed. The market system relies on the consumer to decide what and how much
shall be produced, and on competition, among producers to determine who will manufacture it."
Again, we underline in scarlet that the fundamental principle espoused by section 19, Article
XII of the Constitution is competition for it alone can release the creative forces of the market. But the
competition that can unleash these creative forces is competition that is fighting yet is fair. Ideally, this
kind of competition requires the presence of not one, not just a few but several players. A market controlled by
one player (monopoly) or dominated by a handful of players (oligopoly) is hardly the market where honest-to-
goodness competition will prevail. Monopolistic or oligopolistic markets deserve our careful scrutiny and laws
which barricade the entry pointsof new players in the market should be viewed with suspicion.
Prescinding from these baseline propositions, we shall proceed to examine whether the provisions of R.A. No.
8180 on tariff differential, inventory reserves, and predatory prices imposed substantial barriers to the entry and
exit of new players in our downstream oil industry. If they do, they have to be struck down for they will
necessarily inhibit the formation of a truly competitive market. Contrariwise, if they are insignificant
impediments, they need not be stricken down.
In the cases at bar, it cannot be denied that our downstream oil industry is operated and controlled by an
oligopoly, a foreign oligopoly at that. Petron, Shell and Caltex stand as the only major league players in the oil
market. All other players belong to the lilliputian league. As the dominant players, Petron, Shell and Caltex
boast ofexisting refineries of various capacities. The tariff differential of 4% therefore works to their immense
benefit. Yet, this is only one edge of the tariff differential. The other edge cuts and cuts deep in the heart of their
competitors. It erects a high barrier to the entry of new players. New players that intend to equalize the market
power of Petron, Shell and Caltex by building refineries of their own will have to spend billions of pesos. Those
who will not build refineries but compete with them will suffer the huge disadvantage of increasing their
product cost by 4%.They will be competing on an uneven field. The argument that the 4% tariff differential is
desirable because it will induce prospective players to invest in refineries puts the cart before the horse. The
first need is to attract new players and they cannot be attracted by burdening them with heavy disincentives.
Without new players belonging to the league of Petron, Shell and Caltex, competition in our downstream oil
industry is an idle dream.
The provision on inventory widens the balance of advantage of Petron, Shell and Caltex against prospective
new players. Petron, Shell and Caltex can easily comply with the inventory requirement of R.A. No. 8180 in
view of their existing storage facilities. Prospective competitors again will find compliance with this
requirement difficult as it will entail a prohibitive cost. The construction cost of storage facilities and the
cost of inventory can thus scare prospective players. Their net effect is to further occlude the entry
points of new players, dampen competition and enhance the control of the market by the three (3) existing oil
companies.
Finally, we come to the provision on predatory pricing which is defined as "...selling or offering to sell any
product at a price unreasonably below the industry average cost so as to attract customers to the
detriment of competitors." Respondents contend that this provision works against Petron, Shell and Caltex and
protects new entrants. The ban on predatory pricing cannot be analyzed in isolation. Its validity is interlocked
with the barriers imposed by R.A. No. 8180 on the entry of new players. The inquiry should be to determine
whether predatory pricing on the part of the dominant oil companies is encouraged by the provisions in the law
blocking the entryof new players. Text-writer Hovenkamp, 36 gives the authoritative answer and we quote:

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 "xxx xxx xxx
"The rationale for predatory pricing is the sustaining of losses today that will give a firm
monopoly profits in the future. The monopoly profits will never materialize, however, if the
market is flooded with new entrants as soon as the successful predator attempts to raise its
price. Predatory pricing will be profitable only if the market contains significant barriers to
new entry."
As aforediscussed, the 4% tariff differential and the inventory requirement are significant barriers which
discourage new players to enter the market. Considering these significant barriers established by R.A. No. 8180
and the lack of players with the comparable clout of PETRON, SHELL and CALTEX, the temptation for a
dominant player to engage in predatory pricing and succeed is a chilling reality. Petitioners' charge that this
provision on predatory pricing is anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that new players have entered the market since
deregulation. A scrutiny of the list of the alleged new players will, however, reveal that not one belongs to the
class and category of PETRON, SHELL and CALTEX. Indeed, there is no showing that any of these new
players intends to install any refinery and effectively compete with these dominant oil companies. In any event,
it cannot be gainsaid that the new players could have been more in number and more impressive in might if the
illegal entry barriers in R.A. No. 8180 were not erected.
We come to the final point. We now resolve the total effect of the untimely deregulation, the imposition of 4%
tariff differential on imported crude oil and refined petroleum products, the requirement of inventory and the
prohibition on predatory pricing on the constitutionality of R.A. No. 8180. The question is whether these
offending provisions can be individually struck down without invalidating the entire R.A. No. 8180. The ruling
case law is well stated by author Agpalo, 37 viz.:
"xxx xxx xxx
The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had supposed that it could not
constitutionally enact the other. Enough must remain to make a complete, intelligible and valid
statute, which carries out the legislative intent. . .
The exception to the general rule is that when the parts of a statute are so mutually dependent
and connected, as conditions, considerations, inducements, or compensations for each other, as
to warrant a belief that the legislature intended them as a whole, the nullity of one part will
vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one
another, the legislature intended the statute to be carried out as a whole and would not have
enacted it if one part is void, in which case if some parts are unconstitutional, all the other
provisions thus dependent, conditional, or connected must fall with them." cdtech
R.A. No. 8180 contains a separability clause. Section 23 provides that "if for any reason, any section or
provision of this Act is declared unconstitutional or invalid, such parts not affected thereby shall remain in full
force and effect." This separability clause notwithstanding, we hold that the offending provisions of R.A. No.
8180 so permeate its essence that the entire law has to be struck down. The provisions on tariff differential,
inventory and predatory pricing are among the principal props ofR.A. No. 8180. Congress could not have
deregulated the downstream oil industry without these provisions. Unfortunately, contrary to their intent, these
provisions on tariff differential, inventory and predatory pricing inhibit fair competition, encourage
monopolistic power and interfere with the free interaction of market forces. R.A. No. 8180 needs provisions to

289
vouchsafe free and fair competition. The need for these vouchsafing provisions cannot be overstated. Before
deregulation,PETRON, SHELL and CALTEX had no real competitors but did not have a free run of the market
because government controls both the pricing and non-pricing aspects of the oil industry.After
deregulation,PETRON, SHELL and CALTEX remain unthreatened by real competition yet are no longer
subject to control by government with respect to their pricing and non-pricing decisions. The aftermath of R.A.
No. 8180 is a deregulated market where competition can be corrupted and where market forces can be
manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people have not escaped Congress. A lot of our
leading legislators have come out openly with bills seeking the repeal of these odious and offensive provisions
in R.A. No. 8180. In the Senate, Senator Freddie Webb has filed S.B. No. 2133 which is the result of the
hearings conducted by the Senate Committee on Energy. The hearings revealed that (1) there was a need to
level the playing field for the new entrants in the downstream oil industry,and (2) there was no law punishing a
person for selling petroleum products at unreasonable prices. Senator Alberto G. Romulo also filed S.B. No.
2209 abolishing the tariff differential beginning January 1, 1998. He declared that the amendment "... would
mean that instead of just three (3) big oil companies there will be other major oil companies to provide more
competitive prices for the market and the consuming public." Senator Heherson T . Alvarez, one of the principal
proponentsof R.A. No. 8180, also filed S.B. No. 2290 increasing the penalty for violation of its section 9. It is
his opinion as expressed in the explanatory note of the bill that the present oil companies are engaged in
cartelization despite R.A. No.8180, viz.:
"xxx xxx xxx
"Since the downstream oil industry was fully deregulated in February 1997, there have been
eight (8) fuel price adjustments made by the three oil majors, namely: Caltex Philippines,
Inc.;Petron Corporation; and Pilipinas Shell Petroleum Corporation. Very noticeable in the
price adjustments made, however, is the uniformity in the pump prices of practically all
petroleum products of the three oil companies. This, despite the fact, that their selling rates
should be determined by a combination ofany of the following factors: the prevailing peso-
dollar exchange rate at the time payment is made for crude purchases, sources of crude, and
inventory levels of both crude and refined petroleum products. The abovestated factors should
have resulted in different, rather than identical prices.
The fact that the three (3) oil companies' petroleum products are uniformly priced suggests
collusion, amounting to cartelization,among Caltex Philippines, Inc.,Petron Corporation and
Pilipinas Shell Petroleum Corporation to fix the prices of petroleum products in
violation of paragraph (a),Section 9 of R.A. No. 8180.
To deter this pernicious practice and to assure that present and prospective players in the
downstream oil industry conduct their business with conscience and propriety, cartel-like
activities ought to be severely penalized."
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform tariff rate on imported crude oil
and refined petroleum products. In the explanatory note ofthe bill, he declared in no uncertain terms that "...the
present set-up has raised serious public concern over the way the three oil companies have uniformly adjusted
the prices of oil in the country, an indication of a possible existence of a cartel or a cartel-like situation within
the downstream oil industry. This situation is mostly attributed to the foregoing provision on tariff differential,
which has effectively discouraged the entry of new players in the downstream oil industry."
In the House of Representatives,the moves to rehabilitate R.A. No. 8180 are equally feverish. Representative
Leopoldo E. San Buenaventura has filed H.B. No. 9826 removing the tariff differential for imported crude oil
and imported refined petroleum products. In the explanatory note of the bill, Rep. Buenaventura explained:
"xxx xxx xxx

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 As we now experience, this difference in tariff rates between imported crude oil and imported
refined petroleum products, unwittingly provided a built-in-advantage for the three existing oil
refineries in the country and eliminating competition which is a must in a free enterprise
economy.Moreover, it created a disincentive for other players to engage even initially in the
importation and distribution of refined petroleum products and ultimately in the putting
up of refineries. This tariff differential virtually created a monopoly of the downstream oil
industry by the existing three oil companies as shown by their uniform and capricious
pricing of their products since this law took effect, to the great disadvantage of the consuming
public.
Thus, instead of achieving the desired effects of deregulation,that of free enterprise and a level
playing field in the downstream oil industry, R.A. 8180 has created an environment conducive
to cartelization, unfavorable, increased, unrealistic prices of petroleum products in the country
by the three existing refineries."
Representative Marcial C. Punzalan, Jr.,filed H.B. No. 9981 to prevent collusion among the present oil
companies by strengthening the oversight function of the government particularly its ability to subject to a
review any adjustment in the prices of gasoline and other petroleum products. In the explanatory note of the bill,
Rep. Punzalan, Jr.,said:

"xxx xxx xxx

To avoid this, the proposed bill seeks to strengthen the oversight function of government,
particularly its ability to review the prices set for gasoline and other petroleum products. It
grants the Energy Regulatory Board (ERB) the authority to review prices of oil and other
petroleum products, as may be petitioned by a person, group or any entity, and to subsequently
compel any entity in the industry to submit any and all documents relevant to the
imposition of new prices. In cases where the Board determines that there exist collusion,
economic conspiracy, unfair trade practice, profiteering and/or overpricing, it may take any
step necessary to protect the public, including the readjustment of the prices of petroleum
products. Further, the Board may also impose the fine and penalty of imprisonment, as
prescribed in Section 9 of R.A. 8180, on any person or entity from the oil industry who is found
guilty of such prohibited acts.
By doing all of the above, the measure will effectivity provide Filipino consumers with a venue
where their grievances can be heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making the price-setting process more
transparent and making it easier to prosecute those who perpetrate such prohibited acts as
collusion, overpricing, economic conspiracy and unfair trade." cdtai
Representative Sergio A.F. Apostol filed H.B. No. 10039 to remedy an omission in R.A. No. 8180 where there
is no agency in government that determines what is "reasonable" increase in the prices of oil
products. Representative Dante O. Tinga,one of the principal sponsors of R.A. No. 8180, filed H.B. No. 10057
to strengthen its anti-trust provisions. He elucidated in its explanatory note:
"xxx xxx xxx
The definition of predatory pricing, however, needs to be tightened up particularly with respect
to the definitive benchmark price and the specific anti-competitive intent. The definition in the
bill at hand which was taken from the Areeda-Turner test in the United States on predatory
pricing resolves the questions. The definition reads, 'Predatory pricing means selling or
offering to sell any oil product at a price below the average variable cost for the

291
 purpose of destroying competition, eliminating a competitor or discouraging a competitor from
entering the market.'
The appropriate actions which may be resorted to under the Rules of Court in conjunction with
the oil deregulation law are adequate. But to stress their availability and dynamism, it is a good
move to incorporate all the remedies in the law itself. Thus, the present bill formalizes the
concept of government intervention and private suits to address the problem of antitrust
violations. Specifically, the government may file an action to prevent or restrain any
act of cartelization or predatory pricing, and if it has suffered any loss or damage by
reason of the antitrust violation it may recover damages. Likewise, a private person or entity
may sue to prevent or restrain any such violation which will result in damage to his business or
property, and if he has already suffered damage he shall recover treble damages. A class suit
may also be allowed.
To make the DOE Secretary more effective in the enforcement of the law, he shall be given
additional powers to gather information and to require reports."
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more unforgiving view of R.A. No. 8180.
He wants it completely repealed. He explained:
"xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream Oil Industry Deregulation
was discussed and debated upon in the plenary session prior to its approval into law, there
aren't any new players or investors in the oil industry. Thus, resulting in practically a cartel or
monopoly in the oil industry by the three (3) big oil companies, Caltex, Shell and Petron. So
much so, that with the deregulation now being partially implemented, the said oil companies
have succeeded in increasing the prices of most of their petroleum products with little or no
interference at all from the government. In the month of August, there was an increase of Fifty
centavos (50) per liter by subsidizing the same with the OPSF, this is only temporary as in
March 1997, or a few months from now, there will be full deregulation (Phase II) whereby the
increase in the prices of petroleum products will be fully absorbed by the consumers since
OPSF will already be abolished by then. Certainly, this would make the lives of our people,
especially the unemployed ones, doubly difficult and unbearable.
The much ballyhooed coming in of new players in the oil industry is quite remote considering
that these prospective investors cannot fight the existing and well established oil companies in
the country today, namely, Caltex, Shell and Petron. Even if these new players will come in,
they will still have no chance to compete with the said three (3) existing big oil companies
considering that there is an imposition of oil tariff differential of 4% between
importation of crude oil by the said oil refineries paying only 3% tariff rate for the said
importation and 7% tariff rate to be paid by businessmen who have no oil refineries in the
Philippines but will import finished petroleum/oil products which is being taxed with 7% tariff
rates.
So, if only to help the many who are poor from further suffering as a result of unmitigated
increase in oil products due to deregulation, it is a must that theDownstream Oil Industry
Deregulation Act of 1996, or R.A. 8180 be repealed completely."
Various resolutions have also been filed in the Senate calling for an immediate and comprehensive
review of R.A. No. 8180 to prevent the downpour of its ill effects on the people. Thus, S. Res. No. 574 was filed
by Senator Gloria M. Macapagal entitled Resolution "Directing the Committee on Energy to Inquire Into The
Proper Implementation of the Deregulation of the Downstream Oil Industry and Oil Tax Restructuring As
Mandated Under R.A. Nos. 8180 and 8184, In Order to Make The Necessary Corrections In the Apparent

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Misinterpretation Of The Intent And Provision Of The Laws And Curb The Rising Tide Of Disenchantment
Among The Filipino Consumers And Bring About The Real Intentions And Benefits Of The Said
Law." Senator Blas P. Ople filed S. Res. No. 664 entitled resolution "Directing the Committee on Energy To
Conduct An Inquiry In Aid Of Legislation To Review The Government's Oil Deregulation Policy In
Light Of The Successive Increases In Transportation, Electricity And Power Rates, As Well As Of Food And
Other Prime Commodities And Recommend Appropriate Amendments To Protect The Consuming Public."
Senator Ople observed:
"xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy Regulatory Board (ERB) has
imposed successive increases in oil prices which has triggered increases in electricity and
power rates, transportation fares, as well as in prices of food and other prime commodities to
the detriment of our people, particularly the poor;
WHEREAS, the new players that were expected to compete with the oil cartel-Shell, Caltex and
Petron-have not come in;
WHEREAS, it is imperative that a review of the oil deregulation policy be made to consider
appropriate amendments to the existing law such as an extension of the transition phase before
full deregulation in order to give the competitive market enough time to develop;
WHEREAS, the review can include the advisability of providing some incentives in order to
attract the entry of new oil companies to effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of the institutional framework for
full deregulation of the oil industry as mandated under Executive Order No. 377 issued by
President Ramos last October 31, 1996. . . ."
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution "Directing the Committees on Energy and
Public Services In Aid of Legislation To Assess The Immediate Medium And Long Term Impact of Oil
Deregulation On Oil Prices And The Economy." Among the reasons for the resolution is the finding that "the
requirement of a 40-day stock inventory effectively limits the entry of other oil firms in the market with the
consequence that instead of going down oil prices will rise."
Parallel resolutions have been filed in the House of Representatives. Representative Dante O. Tinga filed H.
Res. No. 1311 "Directing The Committee on Energy To Conduct An Inquiry, In Aid of Legislation, Into The
Pricing Policies And Decisions Of The Oil Companies Since The Implementation of Full Deregulation Under
The Oil Deregulation Act (R.A. No. 8180) For the Purpose of Determining In The Context Of The Oversight
Functions Of Congress Whether The Conduct Of The Oil Companies, Whether Singly Or Collectively,
Constitutes Cartelization Which Is A Prohibited Act Under R.A. No. 8180, And What Measures Should Be
Taken To Help Ensure The Successful Implementation Of The Law In Accordance With Its Letter And Spirit,
Including Recommending Criminal Prosecution Of the Officers Concerned Of the Oil Companies If Warranted
By The Evidence, And For Other Purposes." Representatives Marcial C . Punzalan, Jr., Dante O. Tinga and
Antonio E. Bengzon III filed H.R. No. 894 directing the House Committee on Energy to inquire into the proper
implementation of the deregulation of the downstream oil industry. House Resolution No. 1013 was also filed
by Representatives Edcel C. Lagman, Enrique T. Garcia, Jr. and Joker P. Arroyo urging the President to
immediately suspend the implementation ofE.O. No. 392.
In recent memory there is no law enacted by the legislature afflicted with so much constitutional deformities as
R.A. No. 8180. Yet, R.A. No. 8180 deals with oil, a commodity whose supply and price affect the ebb and
flow of the lifeblood of the nation. Its shortage of supply or a slight, upward spiral in its price shakes our
economic foundation. Studies show that the areas most impacted by the movement of oil are food manufacture,
land transport, trade, electricity and water. 38 At a time when our economy is in a dangerous downspin, the
perpetuation of R.A. No. 8180 threatens to multiply the number of our people with bent backs and begging
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bowls.R.A. No. 8180 with its anti-competition provisions cannot be allowed by this Court to stand even while
Congress is working to remedy its defects.llcd

The Court, however, takes note of the plea of PETRON, SHELL and CALTEX to lift our restraining order to
enable them to adjust upward the price of petroleum and petroleum products in view of the plummeting
value of the peso. Their plea, however, will now have to be addressed to the Energy Regulatory Board as the
effect of the declaration of unconstitutionality of R.A. No. 8180 is to revive the former laws it repealed. 39 The
length of our return to the regime of regulation depends on Congress which can fasttrack the writing of a new
law on oil deregulation in accord with the Constitution.
With this Decision, some circles will chide the Court for interfering with an economic decision of Congress.
Such criticism is charmless for the Court is annulling R.A. No. 8180 not because it disagrees with deregulation
as an economic policy but because as cobbled by Congress in its present form, the law violates the Constitution.
The right call therefor should be for Congress to write a new oil deregulation law that conforms with
the Constitution and not for this Court to shirk its duty of striking down a law that offends the Constitution.
Striking down R.A. No. 8180 may cost losses in quantifiable terms to the oil oligopolists. But the loss in
tolerating the tampering ofour Constitution is not quantifiable in pesos and centavos. More worthy of protection
than the supra-normal profits of private corporations is the sanctity of the fundamental
principles of the Constitution. Indeed when confronted by a law violating the Constitution, the Court has no
option but to strike it down dead. Lest it is missed, the Constitution is a covenant that grants and
guarantees both the political and economic rights of the people. The Constitution mandates this Court to be the
guardian not only of the people's political rights but their economic rights as well. The protection of the
economic rights of the poor and the powerless is of greater importance to them for they are concerned more
with the esoterics of living and less with the esoterics of liberty. Hence, for as long as the Constitution reigns
supreme so long will this Court be vigilant in upholding the economic rights of our people especially from the
onslaught of the powerful. Our defense of the people's economic rights may appear heartless because it cannot
be half-hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared unconstitutional and E.O. No. 372
void.
SO ORDERED.
Regalado, Davide, Jr.,Romero, Bellosillo and Vitug, JJ ., concur.
Mendoza, J ., concurs in the result.
Narvasa, C .J ., is on leave.

Separate Opinions

KAPUNAN, J ., concurring:

Lately, the Court has been perceived (albeit erroneously) to be an unwelcome interloper in affairs and concerns
best left to legislators and policy-makers. Admittedly, the wisdom of political and economic decisions are
outside the scrutiny of the Court. However, the political question doctrine is not some mantra that will
automatically cloak executive orders and laws (or provisions thereof) with legitimacy. It is this Court's bounden
duty under Sec. 4(2), Art. VIII of the 1987 Constitution to decide all cases involving the
constitutionality of laws and under Sec. 1 of the same article, "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 the Government."

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In the instant case, petitioners assail the constitutionality of certain provisions found in R.A. No. 8180,
otherwise known as the "Downstream Oil Industry Deregulation Act of 1996." To avoid accusations of undue
interference with the workings of the two other branches of government, this discussion is limited to the
issue of whether or not the assailed provisions are germane to the law or serve the purpose for which it was
enacted.
The objective of the deregulation law is quite simple. As aptly enunciated in Sec. 2 thereof, it is to "foster a
truly competitive market which can better achieve the social policy objectives of fair prices and adequate,
continuous supply of environmentally-clean and high quality petroleum products." The key, therefore, is free
competitionwhich is commonly defined as:
The act or action of seeking to gain what another is seeking to gain at the same time and
usually under or as if under fair or equitable rules and circumstances: a common struggle for
the same object especially among individuals of relatively equal standing ...a market condition
in which a large number of independent buyers and sellers compete for identical commodity,
deal freely with each other, and retain the right of entry and exit from the market. (Webster's
Third International Dictionary.)
and in a landscape where our oil industry is dominated by only three major oil firms, this translates
primarily into the establishment of a free market conducive to the entry of new and several oil companies in
the business. Corollarily, it means the removal of any and all barriers that will hinder the
influx of prospective players. It is a truism in economics that if there are many players in the market, healthy
competition will ensue and in order to survive and profit the competitors will try to outdo each other in
terms of quality and price. The result: better quality products and competitive prices. In the end, it will be
the public that benefits (which is ultimately the most important goal of the law).Thus, it is within this
framework that we must determine the validity of the assailed provisions.
I
The 4% Tariff Differential
Sec. 5. Liberalization of Downstream Oil Industry and Tariff Treatment.
xxx xxx xxx
b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff
duty shall be imposed and collected on imported crude oil at the rate ofthree percent (3%) and
imported refined petroleum products at the rate of seven percent (7%),except fuel oil and LPG,
the rate for which shall be the same as that for imported crude oil: Provided, That beginning on
January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be
the same: Provided, further, That this provision may be amended only by an Act of Congress;
Respondents are one in asserting that the 4% tariff differential between imported crude oil and imported refined
petroleum products is intended to encourage the new entrants to put up their own refineries in the country. The
advantages of domestic refining cannot be discounted, but we must view this intent in the proper perspective.
The primary purpose of the deregulation law is to open up the market and establish free competition. The
priority of the deregulation law, therefore, is to encourage new oil companies to come in first. Incentives to
encourage the building of local refineries should be provided after the new oil companies have entered the
Philippine market and are actively participating therein.
The threshold question therefore is, is the 4% tariff differential a barrier to the entry of new oil companies in the
Philippine market?
It is. Since the prospective oil companies do not (as yet) have local refineries, they would have to import refined
petroleum products, on which a 7% tariff duty is imposed. On the other hand, the existing oil companies already
have domestic refineries and, therefore, only import crude oil which is taxed at a lower rate of3%.Tariffs are
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part of the costs of production. Hence, this means that with the 4% tariff differential (which becomes an added
cost) the prospective players would have higher production costs compared to the existing oil companies and it
is precisely this factor which could seriously affect its decision to enter the market. cdll
Viewed in this light, the tariff differential between imported crude oil and refined petroleum products becomes
an obstacle to the entry of new players in the Philippine oil market. It defeats the purpose of the law and should
thus be struck down.
Public respondents contend that "...a higher tariff rate is not the overriding factor confronting a prospective
trader/importer but, rather, his ability to generate the desired internal rate of return (IRR) and net present value
(NPV).In other words, if said trader/importer, after some calculation, finds that he can match the price oflocally
refined petroleum products and still earn the desired profit margin, despite a higher tariff rate, he will be
attracted to embark in such business. A tariff differential does not per se make the business of importing refined
petroleum product a losing proposition." 1
The problem with this rationale, however, is that it is highly speculative. The opposite may well hold true. The
point is to make the prospect of engaging in the oil business in the Philippines appealing, so why create a barrier
in the first place?
There is likewise no merit in the argument that the removal of the tariff differential will revive the 10% (for
crude oil) and 20% (for refined petroleum products) tariff rates that prevailed before the enactment of R.A. No.
8180. What petitioners are assailing is the tariff differential. Phrased differently, why is the tariff duty imposed
on imported petroleum products not the same as that imposed on imported crude oil? Declaring the tariff
differential void is not equivalent to declaring the tariff itself void. The obvious consequence thereof would be
that imported refined petroleum products would now be taxed at the same rate as imported crude oil which R.A.
No. 8180 has specifically set at 3%.The old rates have effectively been repealed by Sec. 24 of the same law. 2
II
The Minimum Inventory Requirement and the Prohibition Against Predatory Pricing
SEC. 6. Security of Supply. To ensure the security and continuity of petroleum crude and
products supply, the DOE shall require the refiners and importers to maintain a minimum
inventory equivalent to ten percent (10%) of their respective annual sales volume or forty (40)
days of supply, whichever is lower.

xxx xxx xxx

SEC. 9. Prohibited Acts. To ensure fair competition and prevent cartels and monopolies in
the downstream oil industry, the following acts are hereby prohibited:
xxx xxx xxx
b) Predatory pricing which means selling or offering to sell any product at a price unreasonably
below the industry average cost so as to attract customers to the detriment of competitors.
The same rationale holds true for the two other assailed provisions in the Oil Deregulation law. The primordial
purpose of the law, I reiterate, is to create a truly free and competitive market. To achieve this goal, provisions
that show the possibility, or even the merest hint, of deterring or impeding the ingress of new blood in the
market should be eliminated outright. I am confident that our lawmakers can formulate other measures that
would accomplish the same purpose (insure security and continuity of petroleum crude products supply and
prevent fly by night operators, in the case of the minimum inventory requirement, for instance) but would not
have on the downside the effect of seriously hindering the entry of prospective traders in the market.

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The overriding consideration, which is the public interest and public benefit, calls for the levelling of the
playing fields for the existing oil companies and the prospective new entrants. Only when there are many
players in the market will free competition reign and economic development begin.
Consequently, Section 6 and Section 9(b) of R.A. No. 8180 should similarly be struck down.
III
Conclusion
Respondent oil companies vehemently deny the "cartelization" of the oil industry. Their parallel business
behaviour and uniform pricing are the result of competition, they say, in order to keep their share of the market.
This rationale fares well when oil prices are lowered, i.e. when one oil company rolls back its prices, the others
follow suit so as not to lose its market. But how come when one increases its prices the others likewise follow?
Is this competition at work?
Respondent oil companies repeatedly assert that due to the devaluation of the peso, they had to increase the
prices of their oil products, otherwise, they would lose, as they have allegedly been losing specially with the
issuance of a temporary restraining order by the Court. However, what we have on record are only the self-
serving lamentations of respondent oil companies. Not one has presented hard data, independently verified, to
attest to these losses. Mere allegations are not sufficient but must be accompanied by supporting evidence. What
probably is nearer the truth is that respondent oil companies will not make as much profits as they have in the
past if they are not allowed to increase the prices of their products everytime the value of the peso slumps. But
in the midst of worsening economic difficulties and hardships suffered by the people, the very customers who
have given them tremendous profits throughout the years, is it fair and decent for said companies not to bear a
bit of the burden by foregoing a little of their profits?
PREMISES CONSIDERED, I vote that Section 5(b),Section 6 and Section 9(b) of R.A. No. 8180 be declared
unconstitutional.

PANGANIBAN, J ., concurring:

I concur with the lucid and convincing ponencia of Mr. Justice Reynato S. Puno. I write to stress two points:
1. The Issue Is Whether Oil Companies May Unilaterally
Fix Prices, Not Whether This Court May
Interfere in Economic Questions
With the issuance of the status quo order on October 7, 1997 requiring the three respondent oil companies
Petron, Shell and Caltex "to cease and desist from increasing the prices of gasoline and other petroleum fuel
products for a period of thirty (30) days," the Court has been accused of interfering in purely economic policy
matters 1 or, worse, of arrogating unto itself price-regulatory powers. 2 Let it be emphasized that we have no
desire nay, we have no power to intervene in, to change or to repeal the laws of economics, in the same
manner that we cannot and will not nullify or invalidate the laws of physics or chemistry.
The issue here is not whether the Supreme Court may fix the retail prices of petroleum products. Rather, the
issue is whether RA 8180, the law allowing the oil companies to unilaterally set, increase or decrease their
prices, is valid or constitutional.
Under the Constitution, 3 this Court has in appropriate cases the DUTY, not just the power, to determine
whether a law or a part thereof offends the Constitutionand, if so, to annul and set it aside. 4 Because a serious
challenge has been hurled against the validity of one such law, namely RA 8180 its criticality having been
preliminary determined from the petition, comments, reply and, most tellingly, the oral argument on September
30, 1997 this Court, in the exercise of its mandated judicial discretion, issued the status quo order to prevent
the continued enforcement and implementation of a law that was prima facie found to be constitutionally
297
infirm. Indeed, after careful final deliberation, said law is now ruled to be constitutionally defective thereby
disabling respondent oil companies from exercising their erstwhile power, granted by such defective statute, to
determine prices by themselves.
Concededly, this Court has no power to pass upon the wisdom, merits and propriety of the acts of its co-equal
branches in government. However, it does have the prerogative to uphold the Constitution and to strike down
and annul a law that contravenes the Charter. 5 From such duty and prerogative, it shall never shirk or shy
away. cdta
By annulling RA 8180, this Court is not making a policy statement against deregulation. Quite the contrary, it is
simply invalidating a pseudo deregulation law which in reality restrains free trade and perpetuates a cartel, an
oligopoly. The Court is merely upholding constitutional adherence to a truly competitive economy that releases
the creative energy of free enterprise.It leaves to Congress, as the policy-setting agency of the government, the
speedy crafting of a genuine, constitutionally justified oil deregulation law.
2. Everyone, Rich or Poor, Must Share in the Burdens of Economic Dislocation
Much has been said and will be said about the alleged negative effect of this Court's holding on the oil giants'
profit and loss statements. We are not unaware of the disruptive impact of the depreciating peso on the retail
prices of refined petroleum products. But such price-escalating consequence adversely affects not merely these
oil companies which occupy hallowed places among the most profitable corporate behemoths in our country. In
these critical times of widespread economic dislocations, abetted by currency fluctuations not
entirely of domestic origin, all sectors of society agonize and suffer. Thus, everyone, rich or poor, must share in
the burdens of such economic aberrations.
I can understand foreign investors who see these price adjustments as necessary consequences of the country's
adherence to the free market, for that, in the first place, is the magnet for their presence here. Understandably,
their concern is limited to bottom lines and market share. But in all these mega companies, there are also
Filipino entrepreneurs and managers. I am sure there are patriots among them who realize that, in
times of economic turmoil, the poor and the underprivileged proportionately suffer more than any other
sector of society. There is a certain threshold of pain beyond which the disadvantaged cannot endure. Indeed, it
has been wisely said that "if the rich who are few will not help the poor who are many, there will come a time
when the few who are filled cannot escape the wrath of the many who are hungry." Kaya't sa mga kababayan
nating kapitalista at may kapangyarihan, nararapat lamang na makiisa tayo sa mga walang palad at mahihirap
sa mga arawng pangangailangan. Huwag na nating ipagdiinan ang kawalan ng tubo, o maging ang
panandaliang pagkalugi. At sa mga mangangalakal na ganid at walang puso: hirap na hirap na po ang ating
mga kababayan. Makonsiyensya naman kayo!

MELO, J ., dissenting:

With all due respect to my esteemed colleague, Mr. Justice Puno, who has, as usual, prepared a well-written and
comprehensive ponencia, I regret I cannot share the view that Republic Act No. 8180 should be struck down as
violative of the Constitution.
The law in question, Republic Act No. 8180, otherwise known as the Downstream Oil Deregulation
Act of 1996, contains, inter alia,the following provisions which have become the subject of the present
controversy, to wit:
SEC. 5. Liberalization of Downstream Oil Industry and Tariff Treatment.
xxx xxx xxx
(b). Any law to the contrary notwithstanding and starting with the effectivity of this act, tariff
duty shall be imposed and collected on imported crude oil at the rateof (3%) and imported
refined petroleum products at the rate of seven percent (7%),except fuel oil and LPG, the rate
298
 for which shall be the same as that for imported crude oils: Provided, That beginning on
January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be
the same: Provided, further, That this provision may be amended only by an Act of Congress.
...
SEC. 6. Security of Supply. To ensure the security and continuity of petroleum crude and
products supply, the DOE shall require the refiners and importers to maintain a minimum
inventory equivalent to ten percent (10%) of their respective annual sales volume or forty (40)
days of supply, whichever is lower.
xxx xxx xxx
SEC. 9. Prohibited Acts. To ensure fair competition and prevent cartels and monopolies in
the downstream oil industry, the following acts are hereby prohibited:
xxx xxx xxx

b) Predatory pricing which means selling or offering to sell any product at a price unreasonably
below the industry average cost so as to attract customers to the detriment of competitors.
xxx xxx xxx
SEC. 15. Implementation of Full Deregulation. Pursuant to Section 5 (e) of Republic Act
No. 7638, the DOE [Department of Energy] shall, upon approval of the President, implement
the full deregulation of the downstream oil industry not later than March 1997. As far as
practicable, the DOE shall time the full deregulation when the prices of crude oil and
petroleum products in the world market are declining and when the exchange rate of the peso
in relation to the US Dollar is stable. . . .
In G.R. No. 124360, petitioners therein pray that the aforequoted Section 5 (b) be declared null and void.
However, despite its pendency, President Ramos, pursuant to the above-cited Section 15 of the assailed law,
issued Executive Order No. 392 on 22 January 1997 declaring the full deregulation of the downstream oil
industry effective February 8, 1997. A few days after the implementation of said Executive Order, the second
consolidated petition was filed (G.R. No. 127867), seeking, inter alia,the declaration of the
unconstitutionality of Section 15 of the law on various grounds.
I submit that the instant consolidated petitions should be denied. In support of my view, I shall discuss the
arguments of the parties point by point.
1. The instant petitions do not raise a justiciable controversy as the issues raised therein pertain to the wisdom
and reasonableness of the provisions of the assailed law.The contentions made by petitioners, that the
"imposition of different tariff rates on imported crude oil and imported refined petroleum products will not
foster a truly competitive market, nor will it level the playing fields" and that said imposition "does not
deregulate the downstream oil industry, instead, it controls the oil industry, contrary to the avowed policy of the
law," are clearly policy matters which are within the province of the political departments of the government.
These submissions require a review of issues that are in the nature of political questions, hence, clearly beyond
the ambit of judicial inquiry.
A political question refers to a question of policy or to issues 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. Generally, political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular measure (Taada vs. Cuenco, 100 Phil. 101
[1957]).

299
Notwithstanding the expanded judicial power of this Court under Section 1, Article VIII of the Constitution, an
inquiry on the above-stated policy matters would delve on matters of wisdom which are exclusively within the
legislative powers of Congress.
2. The petitioners do not have the necessary locus standi to file the instant consolidated petitions.Petitioners
Lagman, Arroyo, Garcia, Taada, and Tatad assail the constitutionality of the above-stated laws through the
instant consolidated petitions in their capacity as members of Congress, and as taxpayers and concerned
citizens. However, the existence of a constitutional issue in a case does not per se confer or clothe a legislator
with locus standi to bring suit. In Phil. Constitution Association(PHILCONSA) v. Enriquez (235 SCRA 506
[1994]),we held that members of Congress may properly challenge the validity of an official
act of any department of the government only upon showing that the assailed official act affects or impairs their
rights and prerogatives as legislators. In Kilosbayan, Inc.,et al. vs. Morato, et al. (246 SCRA 540 [1995]),this
Court further clarified that "if the complaint is not grounded on the impairment of the power of Congress,
legislators do not have standing to question the validity of any law or official action."
Republic Act No. 8180 clearly does not violate or impair prerogatives, powers, and rights of Congress, or the
individual members thereof, considering that the assailed official act is the very act of Congress itself
authorizing the full deregulation of the downstream oil industry. cdti
Neither can petitioners sue as taxpayers or concerned citizens. A condition sine qua non for the institution of a
taxpayer's suit is an allegation that the assailed action is an unconstitutional exercise of the spending
powers of Congress or that it constitutes an illegal disbursement of public funds. The instant consolidated
petitions do not allege that the assailed provisions of the law amount to an illegal disbursement of public
money. Hence, petitioners cannot, even as taxpayers or concerned citizens, invoke this Court's power of judicial
review.
Further, petitioners, including Flag, FDC, and Sanlakas, can not be deemed proper parties for lack of a
particularized interest or elemental substantial injury necessary to confer on them locus standi.The
interest of the person assailing the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law is invalid, but also that he has sustained or is in immediate danger of sustaining
some direct injury as a result of its enforcement and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute
complained of. Petitioners have not established such kind of interest.
3. Section 5(b) or Republic Act No. 8180 is not violative of the "one title-one subject" rule under Section 26 (1),
Article VI of the Constitution.It is not required that a provision of law be expressed in the title thereof as long as
the provision in question is embraced within the subject expressed in the title of the law. The "title of a bill does
not have to be a catalogue of its contents and will suffice if the matters embodied in the text are relevant to each
other and may be inferred from the title." (Association of Small Landowners in the
Phils.,Inc. vs. Sec. of Agrarian Reform,175 SCRA 343 [1989]) An "act having a single general subject,
indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they
are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject
by providing for the method and means of carrying out the general object." (Sinco, Phil. Political Law, 11th
ed.,p. 225)
The questioned tariff provision in Section 5 (b) was provided as a means to implement the deregulation of the
downstream oil industry and hence, is germane to the purpose of the assailed law. The general
subject of Republic Act No. 8180, as expressed in its title, "An Act Deregulating the Downstream Oil Industry,
and for Other Purposes", necessarily implies that the law provides for the means for such deregulation. One
such means is the imposition of the differential tariff rates which are provided to encourage new investors as
well as existing players to put up new refineries. The aforesaid provision is thus germane to, and in
furtherance of, the object ofderegulation. The trend of jurisprudence, ever since Sumulong vs. COMELEC (73

300
Phil. 288 [1941]),is to give the above-stated constitutional requirement a liberal interpretation. Hence, there is
indeed substantial compliance with said requirement.
Petitioners claim that because the House version of the assailed law did not impose any tariff rates but merely
set the policy of "zero differential" and that the Senate version did not set or fix any tariff, the tariff changes
being imposed by the assailed law was never subject of any deliberations in both houses nor the Bicameral
Conference Committee. I believe that this argument is bereft of merit.
The report of the Bicameral Conference Committee, which was precisely formed to settle differences between
the two houses of Congress, was approved by members thereof only after a full deliberation on the conflicting
provisions of the Senate version and the House version of the assailed law. Moreover, the joint explanatory
statement of said Committee which was submitted to both houses, explicitly states that "while sub-paragraph (b)
is a modification, its thrust and style were patterned after the House's original sub-paragraph (b)." Thus, it
cannot be denied that both houses were informed of the changes in the aforestated provision of the assailed law.
No legislator can validly state that he was not apprised of the purposes, nature, and scope of the
provisions of the law since the inclusion of the tariff differential was clearly mentioned in the Bicameral
Conference Committee's explanatory note.
As regards the power of the Bicameral Conference Committee to include in its report an entirely new provision
that is neither found in the House bill or Senate bill, this Court already upheld such power
in Tolentino vs. Sec. of Finance (235 SCRA 630 [1994]),where we ruled that the conference committee can
even include an amendment in the nature of a substitute so long as such amendment is germane to the
subject of the bill before it.
Lastly, in view of the "enrolled bill theory" pronounced by this Court as early as 1947 in the
case of Mabanag vs. Lopez Vito (78 Phil. 1 [1947]),the duly authenticated copyof the bill, signed by the proper
officers of each house, and approved by the President, is conclusive upon the courts not only of its provisions
but also of its due enactment.
4. Section 15 of Republic Act No. 8180 does not constitute undue delegation of legislative power.Petitioners
themselves admit that said section provides theSecretary of Energy and the President with the bases of (1)
"practicability",(2) "the decline of crude oil prices in the world market",and (3) "the stability of the Peso
exchange rate in relation to the US Dollar",in determining the effectivity of full deregulation. To my mind, said
bases are determinate and determinable guidelines, when examined in the light of the tests for permissible
delegation.

The assailed law satisfies the completeness test as it is complete and leaves nothing more for the Executive
Branch to do but to enforce the same. Section 2 thereof expressly provides that "it shall be the policy of the
State to deregulate the downstream oil industry to foster a truly competitive market which can better achieve the
social policy objectives of fair prices and adequate, continuous supply of environmentally-clean and high-
quality petroleum products." This provision manifestly declares the policy to be achieved through the delegate,
that is, the full deregulation of the downstream oil industry toward the end of full and free competition. Section
15 further provides for all the basic terms and conditions for its execution and thus belies the argument that the
Executive Branch is given complete liberty to determine whether or not to implement the law. Indeed, Congress
did not only make full deregulation mandatory, but likewise set a deadline (that is, not later than March
1997),within which full deregulation should be achieved.
Congress may validly provide that a statute shall take effect or its operation shall be revived or suspended or
shall terminate upon the occurrence of certain events or contingencies the ascertainment of which may be left to
some official agency. In effect, contingent legislation may be issued by the Executive Branch pursuant to a
delegation of authority to determine some fact or state of things upon which the enforcement of a law depends
(Cruz, Phil. Political Law, 1996 ed.,p. 96; Cruz vs.Youngberg,56 Phil. 234 [1931]).This is a valid delegation

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since what the delegate performs is a matter of detail whereas the statute remains complete in all essential
matters. Section 15 falls under this kind of delegated authority. Notably, the only aspect with respect to which
the President can exercise "discretion" is the determination of whether deregulation may be implemented on or
before March, 1997, the deadline set by Congress. If he so decides, however, certain conditions must first be
satisfied, to wit:(1) the prices of crude oil and petroleum products in the world market are declining, and (2) the
exchange rate of the peso in relation to the US Dollar is stable. Significantly, the so-called "discretion" pertains
only to the ascertainment of the existence of conditions which are necessary for the effectivity of the law and
not a discretion as to what the law shall be.
In the same vein, I submit that the President's issuance of Executive Order No. 392 last January 22, 1997 is
valid as contingent legislation. All the Chief Executive did was to exercise his delegated authority to ascertain
and recognize certain events or contingencies which prompted him to advance the deregulation to a date earlier
than March, 1997. Anyway, the law does not prohibit him from implementing the deregulation prior to March,
1997, as long as the standards of the law are met. prcd
Further, the law satisfies the sufficient standards test. The words "practicable","declining",and "stable",as used
in Section 15 of the assailed law are sufficient standards that saliently "map out the boundaries of the delegate's
authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and
effected." (Cruz, Phil. Political Law, 1996 ed.,p. 98) Considering the normal and ordinary definitions of these
standards, I believe that the factors to be considered by the President and/or Secretary of Energy in
implementing full deregulation are, as mentioned, determinate and determinable.
It is likewise noteworthy that the above-mentioned factors laid down by the subject law are not solely
dependent on Congress. Verily, oil pricing and the peso-dollar exchange rate are dependent on the various
forces working within the consumer market. Accordingly, it would have been unreasonable, or even impossible,
for the legislature to have provided for fixed and specific oil prices and exchange rates. To require Congress to
set forth specifics in the law would effectively deprive the legislature of the flexibility and practicability which
subordinate legislation is ultimately designed to provide. Besides, said specifics are precisely the details which
are beyond the competence of Congress, and thus, are properly delegated to appropriate administrative agencies
and executive officials to "fill in". It cannot be gainsaid that the detail of the timing of full deregulation has been
"filled in" by the President, upon the recommendation of the DOE, when he issued Executive Order No. 329.
5. Republic Act No. 8180 is not violative of the constitutional prohibition against monopolies, combinations in
restraint or trade, and unfair competition.The three provisions relied upon by petitioners (Section 5 [b] on tariff
differential; Section 6 on the 40-day minimum inventory requirement; and Section 9 [b] on the prohibited
actof predatory pricing) actually promote, rather than restrain, free trade and competition. llcd
The tariff differential provided in the assailed law does not necessarily make the business of importing refined
petroleum products a losing proposition for new players. First, the decision of a prospective trader/importer
(subjected to the 7% tariff rate) to compete in the downstream oil industry as a new player is based solely on
whether he can, based on his computations, generate the desired internal rate of return (IRR) and net present
value (NPV) notwithstanding the imposition of a higher tariff rate. Second, such a difference in tax treatment
does not necessarily provide refiners of imported crude oil with a significant level of economic advantage
considering the huge amount of investments required in putting up refinery plants which will then have to be
added to said refiners' production cost. It is not unreasonable to suppose that the additional cost imputed by
higher tariff can anyway be overcome by a new player in the business of importation due to lower operating
costs, lower capital infusion, and lower capital carrying costs. Consequently, the resultant cost of imported
finished petroleum and that of locally refined petroleum products may turn out to be approximately the same.
The existence of a tariff differential with regard to imported crude oil and imported finished products is nothing
new or novel. In fact, prior to the passage of Republic Act No. 8180, there existed a 10% tariff differential
resulting from the imposition of a 20% tariff rate on imported finished petroleum products and 10% on
imported crude oil (based on Executive Order No. 115). Significantly, Section 5(b) of the assailed law
effectively lowered the tariff rates from 20% to 7% for imported refined petroleum products, and 10% to 3% for
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imported crude oil, or a reduction of the differential from 10% to 4%. This provision is certainly favorable to all
in the downstream oil industry, whether they be existing or new players. It thus follows that the 4% tariff
differential aims to ensure the stable supply of petroleum products by encouraging new entrants to put up oil
refineries in the Philippines and to discourage fly-by-night importers.
Further, the assailed tariff differential is likewise not violative of the equal protection clause of the Constitution.
It is germane to the declared policy of Republic Act No. 8180 which is to achieve (1) fair prices; and (2)
adequate and continuous supply of environmentally-clean and high quality petroleum products. Said adequate
and continuous supply of petroleum products will be achieved if new investors or players are enticed to engage
in the business of refining crude oil in the country. Existing refining companies, are similarly encouraged to put
up additional refining companies. All of this can be made possible in view of the lower tariff duty on imported
crude oil than that levied on imported refined petroleum products. In effect, the lower tariff rates will enable the
refiners to recoup their investments considering that they will be investing billions of pesos in putting up their
refineries in the Philippines. That incidentally the existing refineries will be benefited by the tariff differential
does not negate the fact that the intended effect of the law is really to encourage the construction of new
refineries, whether by existing players or by new players.
As regards the 40-day inventory requirement. it must be emphasized that the 10% minimum requirement is
based on the refiners' and importers' annual sales volume, and hence, obviously inapplicable to new entrants as
they do not have an annual sales volume yet. Contrary to petitioners' argument, this requirement is not intended
to discourage new or prospective players in the downstream oil industry. Rather, it guarantees "security and
continuity of petroleum crude and products supply." (Section 6, Republic Act No. 8180) This legal requirement
is meant to weed out entities not sufficiently qualified to participate in the local downstream oil industry.
Consequently, it is meant to protect the industry from fly-by-night business operators whose sole interest would
be to make quick profits and who may prove unreliable in the effort to provide an adequate and steady
supply of petroleum products in the country. In effect, the aforestated provision benefits not only the three
respondent oil companies but all entities serious and committed to put up storage facilities and to participate as
serious players in the local oil industry. Moreover, it benefits the entire consuming public by its guarantee of an
"adequate continuous supply of environmentally-clean and high-quality petroleum products." It ensures that all
companies in the downstream oil industry operate according to the same high standards, that the necessary
storage and distribution facilities are in place to support the level of business activities involved, and that
operations are conducted in a safe and environmentally sound manner for the benefit of the consuming public.

Regarding the prohibition against predatory pricing, I believe that petitioners' argument is quite misplaced. The
provision actually protects new players by preventing, under pain of criminal sanction, the more established oil
firms from driving away any potential or actual competitor by taking undue advantage of their size and relative
financial stability. Obviously, the new players are the ones susceptible to closing down on account of intolerable
losses which will be brought about by fierce competition with rival firms. The petitioners are merely working
under the presumption that it is the new players which would succumb to predatory pricing, and not the more
established oil firms. This is not a factual assertion but a rather baseless and conjectural assumption.
As to the alleged cartel among the three respondent oil companies, much as we suspect the same, its existence
calls for a finding of fact which this Court is not in the position to make. We cannot be called to try facts and
resolve factual issues such as this (Trade Unions of the Phils. vs. Laguesma,236 SCRA 586
[1994];Ledesma vs.NLRC,246 SCRA 247 [1995]).
With respect to the amendatory bills filed by various Congressmen aimed to modify the alleged
defects of Republic Act No. 8180, I submit that such bills are the correct remedial steps to pursue, instead of the
instant petitions to set aside the statute sought to be amended. The proper forum is Congress, not this Court.
Finally, as to the ponencia's endnote which cites the plea of respondent oil companies for the lifting of the
restraining order against them to enable them to adjust the prices of petroleum and petroleum products in
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view of the devaluation of our currency, I am pensive as to how the matter can be addressed to the obviously
defunctEnergy Regulatory Board. There has been a number of price increases in the meantime. Too much water
has passed under the bridge. It is too difficult to turn back the hands of time.
For all the foregoing reasons, I, therefore, vote for the outright dismissal of the instant consolidated petitions for
lack of merit.

FRANCISCO, J .,dissenting:

The continuing peso devaluation and the spiraling cost of commodities have become hard facts of life
nowadays. And the wearies are compounded by the ominous prospects of very unstable oil prices. Thus, with
the goal of rationalizing the oil scheme, Congress enacted Republic Act No. 8180, otherwise known as the
Downstream Oil Deregulation Act of 1996, the policy of which is "to foster a truly competitive market which
can better achieve the social policy objectives of fair prices and adequate, continuous
supply of environmentally-clean and high quality petroleum products". 1 But if the noble and laudable
objective of this enactment is not accomplished, as to date oil prices continue to rise, can this Court be called
upon to declare the statute unconstitutional or must the Court desist from interfering in a matter which is best
left to the other branch/es of government? cdpr
The apparent thrust of the consolidated petitions is to declare, not the entirety, but only some isolated
portions of Republic Act No. 8180 unconstitutional. This is clear from the grounds enumerated by the
petitioners, to wit:
G.R. No. 124360
"4.0. Grounds:
4.1.
"THE IMPOSITION OF DIFFERENT TARIFF RATES ON IMPORTED CRUDE OIL AND
IMPORTED REFINED PETROLEUM PRODUCTS VIOLATES THE EQUAL
PROTECTION OF THE LAWS.
4.2.
"THE IMPOSITION OF DIFFERENT TARIFF RATES DOES NOT DEREGULATE THE
DOWNSTREAM OIL INDUSTRY, INSTEAD, IT CONTROLS THE OIL INDUSTRY,
CONTRARY TO THE AVOWED POLICY OF THE LAW.
4.3.
"THE INCLUSION OF A TARIFF PROVISION IN SECTION 5(b) OF THE
DOWNSTREAM OIL INDUSTRY DEREGULATION LAW VIOLATES THE 'ONE
SUBJECT-ONE TITLE' RULE EMBODIED IN ARTICLE VI, SECTION
26(1) OF THE CONSTITUTION." 2
G.R. No. 127867
"GROUNDS
"THE IMPLEMENTATION OF FULL DEREGULATION PRIOR TO THE
EXISTENCE OF A TRULY COMPETITIVE MARKET VIOLATES
THE CONSTITUTION PROHIBITING MONOPOLIES, UNFAIR COMPETITION AND
PRACTICES IN RESTRAINT OF TRADE.

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 "R.A. NO. 8180 CONTAINS DISGUISED REGULATIONS IN A SUPPOSEDLY
DEREGULATED INDUSTRY WHICH CREATE OR PROMOTE MONOPOLY OF THE
OIL INDUSTRY BY THE THREE EXISTING OIL COMPANIES.
"THE REGULATORY AND PENAL PROVISIONS OF R.A. NO. 8180 VIOLATE THE
EQUAL PROTECTION OF THE LAWS, DUE PROCESS OF LAW AND THE
CONSTITUTIONAL RIGHTS OF AN ACCUSED TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION AGAINST HIM." 3
And culled from petitioners' arguments in support of the above grounds, the provisions of Republic Act No.
8180 which they now impugn are:
A. Section 5(b) on the imposition of tariff which provides: "Any law to the contrary
notwithstanding and starting with the effectivity of this Act, tariff duty shall be imposed and
collected on imported crude oil at the rate of three percent (3%),and imported refined
petroleum products at the rate of seven percent (7%),except fuel oil and LPB, the rate for
which shall be the same as that for imported crude oil: Provided,That beginning on January 1,
2004 the tariff rate on imported crude oil and refined petroleum products shall be the
same:Provided further,That this provision may be amended only by an Act of Congress."
[Emphasis added].
B. Section 6 on the minimum inventory requirement, thus: "Security of Supply. To ensure the
security and continuity of petroleum crude and products supply, theDOE shall require the
refiners and importers to maintain a minimum inventory equivalent to ten percent
(10%) of their respective annual sales volume or forty (40) days of supply, whichever is
lower."
C. Section 9(b) on predatory pricing: "Predatory pricing which means selling or offering to sell
any product at a price unreasonably below the industry average cost so as to attract customers
to the detriment of competitors.
"Any person, including but not limited to the chief operating officer or chief executive
officer of the corporation involved, who is found guilty of any of the said prohibited
acts shall suffer the penalty of imprisonment for three (3) years and fine ranging from
Five hundred thousand pesos (P500,000) to One million pesos (P1,000,000)."
D. Section 10 on the other prohibited acts which states: "Other Prohibited Acts. To ensure
compliance with the provisions of this Act, the failure to comply with any of the following
shall likewise be prohibited: 1) submission of any reportorial requirements; 2)
maintenance of the minimum inventory; and, 3) use of clean and safe (environment and
worker-benign) technologies.
"Any person, including but not limited to the chief operating officer or chief executive
officer of the corporation involved, who is found guilty of any of the said prohibited
acts shall suffer the penalty of imprisonment for two (2) years and fine ranging from
Two hundred fifty thousand pesos (P250,000) to Five hundred thousand pesos
(P500,000)."
E. Section 15 on the implementation of full deregulation, thus: "Implementation of Full
Deregulation. Pursuant to Section 5(e) of Republic Act No. 7683, the DOEshall, upon
approval of the President, implement the full deregulation of the downstream oil industry not
later than March, 1997.As far as practicable, the DOE shall time the full deregulation when the
prices of crude oil and petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable. Upon the implementation of the

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 full deregulation as provided herein, the transition phase is deemed terminated and the
following laws are deemed repealed: ..." [Emphasis added].
F. Section 20 on the imposition of administrative fine: "Administrative Fine. The DOE may,
after due notice and hearing impose a fine in the amount of not less than One hundred thousand
pesos (P100,000) but not more than One million pesos (P1,000,000) upon any person or entity
who violates any of its reportorial and minimum inventory requirements, without prejudice to
criminal sanctions."
Executive Order No. 392, entitled "Declaring Full Deregulation Of The Downstream Oil Industry" which
declared the full deregulation effective February 8, 1997, is also sought to be declared unconstitutional.
A careful scrutiny of the arguments proffered against the constitutionality of Republic Act No. 8180 betrays the
petitioners' underlying motive of calling upon this Court to determine the wisdom and efficacy of the enactment
rather than its adherence to the Constitution. Nevertheless, I shall address the issues raised if only to settle the
alleged constitutional defects afflicting some provisions of Republic Act No. 8180. To elaborate:
A. On the imposition of tariff .Petitioners argue that the existence of a tariff provision violated the "one subject-
one title" 4 rule under Article VI, Section 26 (1) as the imposition of tariff rates is "inconsistent with" 5 and not
at all germane to the deregulation of the oil industry. They also stress that the variance between the seven
percent (7%) duty on imported gasoline and other refined petroleum products and three percent (3%) duty on
crude oil gives a "4% tar iff protection in favor of Petron, Shell and Caltex which own and operate refineries
here". 6 The provision, petitioners insist, "inhibits prospective oil players to do business here because it will
unnecessarily increase their product cost by 4%." 7 In other words, the tariff rates "does not foster 'a truly
competitive market'." 8 Also petitioners claim that both Housesof Congress never envisioned imposing the
seven percent (7%) and three percent (3%) tariff on refined and crude oil products as both Houses advocated,
prior to the holding of the bicameral conference committee, a "zero differential". Moreover, petitioners insist
that the tariff rates violate "the equal protection of the laws enshrined in Article III, Section 1 of the
Constitution" 9 since the rates and their classification are not relevant in attaining the avowed policy of the law,
not based on substantial distinctions and limited to the existing condition.

The Constitution mandates that "every bill passed by Congress shall embrace only one subject which shall be
expressed in the title thereof". 10 The object sought to be accomplished by this mandatory requirement has been
explained by the Court in the vintage case of Central Capiz v. Ramirez, 11 thus:
"The object sought to be accomplished and the mischief proposed to be remedied by this
provision are well known. Legislative assemblies, for the dispatch of business, often pass bills
by their titles only without requiring them to be read. A specious title sometimes covers
legislation which, if its real character had been disclosed, would not have commanded assent.
To prevent surprise and fraud on the legislature is one of the purposes this provision was
intended to accomplish. Before the adoption ofthis provision the title of a statute was often no
indication of its subject or contents. LLjur
"An evil this constitutional requirement was intended to correct was the blending in one and
the same statute of such things as were diverse in their nature, and were connected only to
combine in favor of all the advocates of each, thus often securing the passage of several
measures no one of which could have succeeded on its own merits. Mr. Cooley thus sums up in
his review of the authorities defining the objects of this provision: 'It may therefore be assumed
as settled that the purpose of this provision was: First,to prevent hodge-podge or log-rolling
legislation; second,to prevent surprise or fraud upon the legislature by means of provisions in
bills of which the titles gave no information, and which might therefore be overlooked and
carelessly and unintentionally adopted; and, third,to fairly apprise the people, through such

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 publication of legislative proceedings as is usually made, of the subjects of legislation that are
being considered, in order that they may have opportunity of being heard thereon by petition or
otherwise if they shall so desire.' (Cooley's Constitutional Limitations, p. 143)." 12
The interpretation of "one subject-one title" rule, however, is never intended to impede or stifle legislation. The
requirement is to be given a practical rather than a technical construction and it would be sufficient compliance
if the title expresses the general subject and all the provisions of the enactment are germane and material to the
general subject. 13 Congress is not required to employ in the title of an enactment, language of such precision
as to mirror, fully index or catalogue all the contents and the minute details therein. 14 All that is required is
that the title should not cover legislation incongruous in itself, and which by no fair intendment can be
considered as having a necessary or proper connection. 15 Hence, the title "An Act Amending Certain
Sections of Republic Act Numbered One Thousand One Hundred Ninety-Nine, otherwise known as the
Agricultural Tenancy Act of the Philippines" was declared by the Court sufficient to contain a provision
empowering the Secretaryof Justice, acting through a tenancy mediation division, to carry out a national
enforcement program, including the mediation of tenancy disputes. 16 The title "An Act Creating the
Videogram Regulatory Board" was similarly declared valid and sufficient to embrace a regulatory tax provision,
i.e., the imposition of a thirty percent (30%) tax on the purchase price or rental rate, as the case may be, for
every sale, lease or disposition of a videogram containing a reproduction of any motion picture or audiovisual
program with fifty percent (50%) of the proceeds of the tax collected accruing to the province and the other fifty
percent (50%) to the municipality where the tax is collected. 17 Likewise, the title "An Act To Further Amend
Commonwealth Act Numbered One Hundred Twenty, as amended by Republic Act Numbered Twenty Six
Hundred and Forty One" was declared sufficient to cover a provision limiting the allowable margin of profit to
not more than twelve percent (12%) annually of its investments plus two-month operating expenses for
franchise holder receiving at least fifty percent (50%) of its power from the National Power Corporation. 18
In the case at bar, the title "An Act Deregulating The Downstream Oil Industry, And For Other Purposes" is
adequate and comprehensive to cover the imposition of tariff rates. The tariff provision under Section 5 (b) is
one of the means of effecting deregulation. It must be observed that even prior to the passage of Republic Act
No. 8180oil products have always been subject to tariff and surely Congress is cognizant of such fact. The
imposition of the seven percent (7%) and three percent (3%) duties on imported gasoline and refined petroleum
products and on crude oil, respectively, are germane to the deregulation of the oil industry. The title, in fact,
even included the broad and all-encompassing phrase "And For Other Purposes" thereby indicating the
legislative intent to cover anything that has some relation to or connection with the deregulation of the oil
industry. The tax provision is a mere tool and mechanism considered essential by Congress to fulfill Republic
Act No. 8180's objective offostering a competitive market and achieving the social policy objectives of fair
prices. To curtail any adverse impact which the tariff treatment may cause by its application, and perhaps in
answer to petitioners' apprehension Congress included under the assailed section a proviso that will effectively
eradicate the tariff difference in the treatment of refined petroleum products and crude oil by stipulating "that
beginning on January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be the
same."
The contention that tariff "does not foster a truly competitive market" 19 and therefore restrains trade and does
not help achieve the purpose of deregulation is an issue not within the power of the Court to resolve.
Nonetheless, the Court's pronouncement in Tio vs. Videogram Regulatory Board appears to be worth
reiterating:
"Petitioner also submits that the thirty percent (30%) tax imposed is harsh and oppressive,
confiscatory, and in restraint of trade. However, it is beyond serious question that a tax does
not cease to be valid merely because it regulates, discourages, or even definitely deters the
activities taxed. The power to impose taxes is one so unlimited in force and so searching in
extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever,
except such as rest in the discretion of the authority which exercises it.In imposing a tax, the

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 Legislature acts upon its constituents. This is, in general, a sufficient security against erroneous
and oppressive taxation." 20 [Emphasis added]
Anent petitioners' claim that both House Bill No. 5264 and Senate Bill No. 1253, [the precursor
bills of Republic Act No. 8180], "did not impose any tariff rates but merely set the policy of 'zero differential' in
the House version, and nothing in the Senate version" 21 is inconsequential. Suffice it to state that the bicameral
conference committee report was approved by the conferees thereof only "after full and free conference" on the
disagreeing provisions of Senate Bill No. 1253 and House Bill No. 5264. Indeed, the "zero differential" on the
tariff rates imposed in the House version was embodied in the law, save for a slight delay in its implementation
to January 1, 2004. Moreover, any objection on the validity of provisions inserted by the legislative bicameral
conference committee has been passed upon by the Court in the recent
case of Tolentino v. Secretary of Finance, 22 which, in my view, laid to rest any doubt as to the validity of the
bill emerging out of a Conference Committee. The Court in that case, speaking through Mr. Justice Mendoza,
said:
"As to the possibility of an entirely new bill emerging out of a Conference Committee, it has
been explained:
'Under congressional rules of procedure, conference committees are not expected to
make any material change in the measure at issue, either by deleting provisions to
which both houses have already agreed or by inserting new provisions. But this is a
difficult provision to enforce. Note the problem when one house amends a proposal
originating in either house by striking out everything following the enacting clause and
substituting provisions which make it an entirely new bill. The versions are now
altogether different, permitting a conference committee to draft essentially a new bill.
...'
"The result is a third version, which is considered an 'amendment in the nature of a substitute,'
the only requirement for which being that the third version be germane to the subject of the
House and Senate bills.
"Indeed, this Court recently held that it is within the power of a conference committee to
include in its report an entirely new provision that is not found either in the House bill or in the
Senate bill. If the committee can propose an amendment consisting of one or two provisions,
there is no reason why it cannot propose several provisions, collectively considered as an
'amendment in the nature of a substitute,' so long as such amendment is germane to the
subject of the bills before the committee. After all, its report was not final but needed the
approval of both houses of Congress to become valid as an act of the legislative department.
The charge that in this case the Conference Committee acted as a third legislative chamber is
thus without any basis.
xxx xxx xxx
"To be sure, nothing in the Rules [of the Senate and the House of Representatives) limits a
conference committee to a consideration of conflicting provisions. But Rule XLVI, (Sec.)
112 of the Rules of the Senate is cited to the effect that 'If there is no Rule applicable to a
specific case the precedents of the Legislative Department of the Philippines shall be resorted
to, and as a supplement of these, the Rules contained in Jefferson's Manual.' The following is
then quoted from the Jefferson's Manual:

'The managers of a conference must confine themselves to the differences committed to

them ...and may not include subjects not within disagreements, even though germane to
a question in issue.'
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 "Note that, according to Rule XLIX, (Sec.) 112, in case there is no specific rule applicable,
resort must be to the legislative practice. The Jefferson's Manual is resorted to only as
supplement. It is common place in Congress that conference committee reports include new
matters which, though germane, have not been committed to the committee. This practice was
admitted by Senator Raul S. Roco petitioner in G.R. No. 115543, during the oral argument in
these cases. Whatever, then, may be provided in the Jefferson's Manual must be considered to
have been modified by the legislative practice. If a change is desired in the practice it must be
sought in Congress since this question is not covered by any constitutional provision but is
only an internal rule of each house. Thus, Art. VI, (Sec.) 16(3) of the Constitution provides that
'Each House may determine the rules of its proceedings . . .
"This observation applies to the other contention that the Rules of the two chambers were
likewise disregarded in the preparation of the Conference Committee Report because the
Report did not contain a 'detailed and sufficiently explicit statement of changes in, or
amendments to, the subject measure.' The Report used brackets and capital letters to indicate
the changes. This is a standard practice in bill-drafting. We cannot say that in using these
marks and symbols the Committee violated the Rulesof the Senate and the House. Moreover,
this Court is not the proper forum for the enforcement of these internal Rules. To the contrary,
as we have already ruled, 'parliamentary rules are merely procedural and with their observance
the courts have no concern.' Our concern is with the procedural
requirements of the Constitutionfor the enactment of laws. As far as these requirements are
concerned, we are satisfied that they have been faithfully observed in these cases." 23
The other contention of petitioners that Section 5(b) "violates the equal protection of the laws enshrined in
Article III, Section 1 of the Constitution" 24 deserves a short shrift for the equal protection clause does not
forbid reasonable classification based upon substantial distinctions where the classification is germane to the
purpose ofthe law and applies equally to all the members of the class. The imposition of three percent (3%)
tariff on crude oil, which is four percent (4%) lower than those imposed on refined oil products, as persuasively
argued by the Office of the Solicitor General, is based on the substantial distinction that importers of crude oil,
by necessity, have to establish and maintain refinery plants to process and refine the crude oil thereby adding to
their production costs. To encourage these importers to set up refineries involving huge expenditures and
investments which peddlers and importers of refined petroleum products do not shoulder, Congress deemed it
appropriate to give a lower tariff rate to foster the entry of new "players" and investors in line with the law's
policy to create a competitive market. The residual contention that there is no substantial distinction in the
imposition of seven percent (7%) and three percent (3%) tariff since the law itself will level the tariff rates
between the imported crude oil and refined petroleum products come January 1, 2004, to my mind, is addressed
more to the legislative's prerogative to provide for the duration and period ofeffectivity of the imposition. If
Congress, after consultation, analysis of material data and due deliberations, is convinced that by January 1,
2004, the investors and importers of crude oil would have already recovered their huge investments and
expenditures in establishing refineries and plants then it is within its prerogative to lift the tariff differential.
Such matter is well within the pale of legislative power which the Court may not fetter. Besides, this again is in
line with Republic Act No. 8180's avowed policy to foster a truly competitive market which can achieve the
social policy objectives of fair, if not lower, prices.
B. On the minimum inventory requirement.Petitioners' attack on Section 6 is premised upon their belief that the
inventory requirement is hostile and not conducive for new oil companies to operate here, and unduly favors
Petron, Shell and Caltex, companies which according to them can easily hurdle the requirement. I fail to see any
legal or constitutional issue here more so as it is not raised by a party with legal standing for petitioners do not
claim to be the owners or operators of new oil companies affected by the requirement. Whether or not the
requirement is advantageous, disadvantageous or conducive for new oil companies hinges on presumptions and
speculations which is not within the realm of judicial adjudication. It may not be amiss to mention here that
according to the Office of the Solicitor General "there are about thirty (30) new entrants in the downstream
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activities ...,fourteen (14) of which have started operation ...,eight (8) having commenced operation last March
1997, and the rest to operate between the second quarter of 1997 and the year 2000". 25 Petitioners did not
controvert this averment which thereby cast serious doubt over their claim of "hostile" environment. LLphil
C. On predatory pricing.What petitioners bewail the most in Section 9(b) is "the definition of 'predatory pricing'
[which] is too broad in scope and indefinite in meaning" 26 and the penal sanction imposed for its violation.
Petitioners maintain that it would be the new oil companies or "players" which would lower their prices to gain
a foothold on the market and not Petron, Shell or Caltex, an occasion for these three big oil "companies" to
control the prices by keeping their average cost at a level which will ensure their desired profit
margin. 27 Worse, the penal sanction, they add, deters new "players" from entering the oil market and the
practice of lowering prices is now condemned as a criminal act.
Petitioners' contentions are nebulous if not speculative. In the absence of any concrete proof or evidence, the
assertion that it will only be the new oil companies which will lower oil prices remains a mere guess or
suspicion. And then again petitioners are not the proper party to raise the issue. The query on why
lowering of prices should be penalized and the broad scope of predatory pricing is not for this Court to traverse
the same being reserved for Congress. The Court should not lose sight ofthe fact that its duty under Article
5 of the Revised Penal Code is not to determine, define and legislate what act or acts should be penalized, but
simply to report to the Chief Executive the reasons why it believes an act should be penalized, as well as why it
considers a penalty excessive, thus:
"ART. 5. Duty of the court in connection with acts which should be repressed but which are
nor covered by the law, and in cases of excessive penalties. Whenever a court has
knowledge of any act which it may deem proper to repress and which is not punishable by law,
it shall render the proper decision, and shall report to the Chief Executive, through
the Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of legislation.
"In the same way the court shall submit to the Chief Executive, through
the Department of Justice, such statement as may be deemed proper, without suspending the
execution of the sentence, when a strict enforcement of the provisions of this Code would
result in the imposition of a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense."
Furthermore, in the absence of an actual conviction for violation of Section 9 (b) and the appropriate appeal
to this Court, I fail to see the need to discuss any longer the issue as it is not ripe for judicial adjudication.
Any pronouncement on the legality of the sanction will only be advisory.
D. On other prohibited acts.In discussing their objection to Section 10, together with Section 20, petitioners
assert that these sanctions "even provide stiff criminal and administrative penalties for failure to maintain said
minimum requirement and other regulations" and posed this query: "Are these provisions consistent with the
policy objective to level the playing [field] in a truly competitive answer?" 28 A more circumspect
analysis of petitioners' grievance, however, does not present any legal controversy. At best, their objection deals
on policy considerations that can be more appropriately and effectively addressed not by this Court but by
Congress itself.
E. On the implementation of full deregulation under Section 15, and the validity of Executive Order No. 392.
Petitioners stress that "Section 15 of Republic Act No. 8180 delegates to the Secretary of Energy and to the
President of the Philippines the power to determine when to fully deregulate the downstream oil industry" 29
without providing for any standards "to determine when the prices of crude oil in the world market are
considered to be 'declining'" 30 and when may the exchange rate be considered "stable" for
purposes of determining when it is "practicable" to declare full deregulation. 31 In the
absence of standards, Executive Order No. 392which implemented Section 15 constitute "executive
lawmaking," 32 hence the same should likewise be struck down as invalid. Petitioners additionally decry the
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brief seven (7) month transition period under Section 15 of Republic Act No. 8180. The premature full
deregulation declared in Executive Order No. 392 allowed Caltex, Petron, and Shell oil companies "to define
the conditions under which any 'new players' will have to adhere to in order to become competitive in the new
deregulated market even before such a market has been created." 33 Petitioners are emphatic that Section 15
and Executive Order No. 392 "have effectively legislated a cartel among respondent oil companies, directly
violating the Constitutional prohibition against unfair trade practices and combinations in restraint of trade." 34

Section 15 of Republic Act No. 8180 provides for the implementation of full deregulation. It states:
Section 15. On the implementation of full deregulation, thus:"Implementation of Full
Deregulation. Pursuant to Section 5(e) of Republic Act No. 7683, the DOEshall, upon
approval of the President, implement the full deregulation of the downstream oil industry not
later than March, 1997.As far as practicable, the DOE shall time the full deregulation when the
prices of crude oil and petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable. Upon the implementation of the
full deregulation as provided herein, the transition phase is deemed terminated and the
following laws are deemed repealed: ..." [Emphasis added].
It appears from the foregoing that deregulation has to be implemented "not later than March 1997." The
provision is unequivocal, i.e.,deregulation must be implemented on or before March 1997.
The Secretary of Energy and the President is devoid of any discretion to move the date of full deregulation to
any day later than March 1997. The second sentence which provides that "[a]s far as practicable, the DOE shall
time the full deregulation when the prices of crude oil and petroleum products in the world market are declining
and when the exchange rate of the peso in relation to the US dollar is stable" did not modify or reset to any
other date the full deregulation of downstream oil industry. Not later than March 1997 is a complete and
definite period for full deregulation. What is conferred to the Department ofEnergy in the
implementation of full deregulation, with the approval of the President, is not the power and discretion on what
the law should be. The provision ofSection 15 gave the President the authority to proceed with deregulation on
or before, but not after, March 1997, and if implementation is made before March, 1997, to execute the same, if
possible, when the prices of crude oil and petroleum products in the world market are declining and the peso-
dollar exchange rate is stable. But if the implementation is made on March, 1997, the President has no option
but to implement the law regardless of the conditions of the prices of oil in the world market and the exchange
rates.
The settled rule is that the legislative department may not delegate its power. Any attempt to abdicate it is
unconstitutional and void, based on the principle of potestas delegata non delegare potest.In testing whether a
statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was
complete in all its terms and provisions when it left the hands of the legislative so that nothing was left to the
judgment of any other appointee or delegate of the legislature. 35 An enactment is said to be incomplete and
invalid if it does not lay down any rule or definite standard by which the administrative officer may be guided in
the exercise of the discretionary powers delegated to it. 36 In People v. Vera,37 the Court laid down a guideline
on how to distinguish which power may or may not be delegated by Congress, to wit:
"The true distinction',says Judge Ranney, 'is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.' (Cincinnati, W. & Z.R. Co. vs.
Clinton County Comrs. [1852];1 Ohio St.,77, 88 See also,Sutherland on Statutory
Construction, sec. 68.)"
Applying these parameters, I fail to see any taint of unconstitutionality that could vitiate the validity of Section
15. The discretion to ascertain when may the prices ofcrude oil in the world market be deemed "declining" or
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when may the peso-dollar exchange rate be considered "stable" relates to the assessment and
appreciation offacts. There is nothing essentially legislative in ascertaining the existence of facts or conditions
as the basis of the taking into effect of a law 38 so as to make the provision an undue delegation of legislative
power. The alleged lack of definitions of the terms employed in the statute does not give rise to undue
delegation either for the words of the statute, as a rule, must be given its literal meaning. 39 Petitioners'
contentions are concerned with the details of execution by the executive officials tasked to implement
deregulation. No proviso in Section 15 may be construed as objectionable for the legislature has the latitude to
provide that a law may take effect upon the happening of future specified contingencies leaving to some other
person or body the power to determine when the specified contingency has arisen. 40 The instant petition is
similarly situated with the past cases, as summarized in the case of People v. Vera,where the Court ruled for the
validity of several assailed statutes, to wit:
"To the same effect are decisions of this court in Municipality of Cardona vs.
Municipality of Binangonan ([1917],36 Phil. 547);Rubi vs. Provincial Board of Mindoro
([1919],39 Phil. 660),and Cruz vs. Youngberg ([1931],56 Phil. 234).In the first of these cases,
this court sustained the validity of a law conferring upon the Governor-General authority to
adjust provincial and municipal boundaries. In the second case, this court held it lawful for the
legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to
be selected by the provincial governor and approved by the provincial board. In the third case,
it was held proper for the legislature to vest in the Governor-General authority to suspend or
not, at his discretion, the prohibition of the importation of foreign cattle, such prohibition to be
raised 'if the conditions of the country make this advisable or if disease among foreign cattle
has ceased to be a menace to the agriculture and livestock of the lands.'"41
If the Governor-General in the case of Cruz v. Youngberg 42 can "suspend or not, at his discretion, the
prohibition of the importation of cattle, such prohibition to be raised 'if the conditions of the country make
this advisable or if disease among foreign cattles has ceased to be a menace to the agriculture and
livestock of the lands" then with more reason that Section 15 of Republic Act No. 8180 can pass the
constitutional challenge as it has mandatorily fixed the effectivity date of full deregulation to not later than
March 1997, with or without the occurrence of stable peso-dollar exchange rate and declining oil prices.
Contrary to petitioners' protestations, therefore, Section 15 is complete and contains the basic conditions and
terms for its execution. cdasia
To restate, the policy of Republic Act No. 8180 is to deregulate the downstream oil industry and to foster a truly
competitive market which could lead to fair prices and adequate supply of environmentally clean and high-
quality petroleum products. This is the guiding principle installed by Congress upon which the
executive departmentof the government must conform. Section 15 of Republic Act No. 8180 sufficiently
supplied the metes and bounds for the execution of full deregulation. In fact, a cursory reading of Executive
Order No. 392 43 which advanced deregulation to February 8, 1997 convincingly shows the determinable
factors or standards, enumerated under Section 15, which were taken into account by the Chief Executive in
declaring full deregulation. I cannot see my way clear on how or why Executive Order No. 392, as professed by
petitioners, may be declared unconstitutional for adding the "depletion of buffer fund" as one of the grounds for
advancing the deregulation. The enumeration of factors to be considered for full deregulation under Section 15
did not proscribe the Chief Executive from acknowledging other instances that can equally assuage
deregulation. What is important is that the Chief Executive complied with and met the minimum standards
supplied by the law. Executive Order No. 392 may not, therefore, be branded as unconstitutional.
Petitioner's vehement objections on the short seven (7) month transition period under Section 15 and the alleged
resultant de facto formation of cartel are matters which fundamentally strike at the wisdom of the law and the
policy adopted by Congress. These are outside the power of the courts to settle; thus I fail to see the need to
digress any further.

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F. On the imposition of administrative fine.The administrative fine under Section 20 is claimed to be
inconsistent with deregulation. The imposition of administrative fine for failure to meet the reportorial and
minimum inventory requirements, far from petitioners' submission, are geared towards accomplishing the noble
purpose ofthe law. The inventory requirement ensures the security and continuity of petroleum crude and
products supply, 44 while the reportorial requirement is a mere devise for the Department of Energy to monitor
compliance with the law. In any event, the issue pertains to the efficacy of incorporating in the law the
administrative sanctions which lies outside the Court's sphere and competence.
In fine, it seems to me that the petitions dwell on the insistent and recurrent arguments that the
imposition of different tariff rates on imported crude oil and imported petroleum products is violative of the
equal protection clause of the constitution; is not germane to the purpose of the law; does not foster a truly
competitive market; extends undue advantage to the existing oil refineries or companies; and creates a cartel or
a monopoly of sort among Shell, Caltex and Petron in clear contravention ofthe Constitutional proscription
against unfair trade practices and combinations in restraint of trade. Unfortunately, this Court, in my view, is
not at liberty to tread upon or even begin to discuss the merits and demerits of petitioners' stance if it is to be
faithful to the time honored doctrine of separation of powers the underlying principle of out republican state.
45 Nothing is so fundamental on our system of government than its division into three distinct and independent
branches, the executive, the legislative and the judiciary, each branch having exclusive cognizance of matters
within its jurisdiction, and supreme within its own sphere, it is true that there is sometimes an inevitable
overlapping and interlacing of functions and duties between these departments. But this elementary tenet
remains: the legislative is vested with the power to make law, the judiciary to apply and interpret it, in cases like
this, "the judicial branch of the government has only one duty-to lay the article ofthe Constitution which is
invoked beside the statute which is challenged and to decide whether the latter squares with the former." 46
This having been done and finding no constitutional infirmity therein, the Court's task is finished. Now whether
or not the law fails to achieve its avowed policy because Congress did not carefully evaluate the long term
effects of some of its provisions is a matter clearly beyond this Court's domain.

Perhaps it bears reiterating that the question of validity of every statute is first determined by the
legislative department of the government, and the courts will resolve every presumption in favor of its validity.
The courts will assume that the validity of the statute was fully considered by the legislature when adopted. The
wisdom or advisability of a particular statute is not a question for the courts to determine. If a particular statute
is within the constitutional power of the legislature to enact, it should be sustained whether the courts agree or
not in the wisdom of its enactment. 47 This Court continues to recognize that in the determination of actual
cases and controversies, it must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative branches of government. Thus, the presumption is always in
favor of constitutionality for it is likewise always presumed that in the enactment of a law or the adoption of a
policy it is the people who speak through their representatives. This principle is one of caution and
circumspection in the exercise of the grave and delicate function of judicial review 48 .Explaining this principle
Thayer said,
"It can only disregard the Act when those who have the right to make laws have not merely
made a mistake, but have made a very clear one-so clear that it is not open to rational question.
That is the standard of duty to which the courts bring legislative acts; that is the test which they
apply-not merely their own judgment as to constitutionality, but their conclusion as to what
judgment is permissible to another department which the constitution has charged with the
duty of making it. This rule recognizes that, having regard to the great, complex, ever-folding
exigencies of government, much will seem unconstitutional to one man, or body of men, may
reasonably not seem so to another; that the constitution often admits of different
interpretations; that there is often a range of choice and judgment; that in such cases
the constitution does not impose upon the legislature any one specific opinion, but leaves open
their range of choice; and that whatever choice is rational is constitutional." 49
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The petitions discuss rather extensively the adverse economic implications of Republic Act No. 8180. They put
forward more than anything else, an assertion that an error of policy has been committed. Reviewing the
wisdom of the policies adopted by the executive and legislative departments is not within the province of the
Court.
It is safe to assume that the legislative branch of the government has taken into consideration and has carefully
weighed all points pertinent to the law in question. We cannot doubt that these matters have been the
object of intensive research and study not that they have been subject of comprehensive consultations with
experts and debates in both houses of Congress. Judicial review at this juncture will at best be limited and
myopic. For admittedly, this Court cannot ponder on the points raised in the petitions with the same technical
competence as that of the economic experts who have contributed valuable hours of study and deliberation in
the passage of this law.
I realize that to invoke the doctrine of separation of powers at this crucial time may be viewed by some as an
act of shirking from our duty to uphold the Constitution at all cost. Let it be remembered, however, that the
doctrine of separation of powers is likewise enshrined in our Constitution and deserves the same
degree of fealty. In fact, it carries more significance now in the face of an onslaught of similar cases brought
before this Court by the opponents of almost every enacted law of major importance. It is true that this Court is
the last bulwark of justice and it is our task to preserve the integrity of our fundamental law. But we cannot
become, wittingly or unwittingly, instruments of every aggrieved minority and losing legislator.While the
laudable objectives of the law are put on hold, this Court is faced with the unnecessary
burden of disposing of issues merely contrived to fall within the ambit of judicial review. All that is achieved is
delay which is perhaps, sad to say, all that may have been intended in the first place.
Indeed, whether Republic Act No. 8180 or portions thereof are declared unconstitutional, oil prices may
continue to rise, as they depend not on any law but on the volatile market and economic forces. It is therefore
the political departments of government that should address the issues raised herein for the discretion to allow a
deregulated oil industry and to determine its viability is lodged with the people in their primary political
capacity, which as things stand, has been delegated to Congress.
In the end, petitioners are not devoid of a remedy. To paraphrase the words of Justice Padilla
in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas v. Tan, 50 if petitioners seriously believe that
the adoption and continued application of Republic Act No. 8180 are prejudicial to the general welfare or the
interests of the majorityof the people, they should seek recourse and relief from the political
branches of government, as they are now doing by moving for an amendment of the assailed provisions in the
correct forum which is Congress or for the exercise of the people's power of initiative on legislation. The Court
following the time honored doctrine ofseparation of powers, cannot substitute its judgment for that of the
Congress as to the wisdom, justice and advisability of Republic Act No. 8180. 51
ACCORDINGLY, finding no merit in the instant petitions I vote for their outright dismissal.
||| (Tatad v. Secretary of the Department of Energy, G.R. No. 124360, 127867, [November 5, 1997], 346 PHIL
321-423)

FIRST DIVISION

[G.R. No. 130716. December 9, 1998.]

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD

GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO (in his capacity as
chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON,
SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention.
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SYLLABUS

1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO INFORMATION ON MATTERS OF PUBLIC

CONCERN AND ACCESS TO OFFICIAL DOCUMENTS AND RECORDS; SUFFICIENT BASIS TO
UPHOLD PETITIONER'S LOCUS STANDI IN CASE AT BAR. The instant petition is anchored on the
right of the people to information and access to official records, documents and papers a right guaranteed
under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen.
Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal
standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at
bar should be allowed. In any event, the question on the standing of Petitioner Chavez is rendered moot by the
intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the
Jopsons is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a legal
interest in the subject matter of the instant case, since a distribution or disposition of the Marcoses' ill-gotten
properties may adversely affect the satisfaction of their claims.
2.ID.; ID.; ID.; RIGHT TO FULL PUBLIC DISCLOSURE OF ALL TRANSACTIONS INVOLVING
PUBLIC INTEREST; LIMITATIONS IN THE EXERCISE THEREOF, ENUMERATED. The
"information" and the "transactions" referred to in Sec. 7 (Article III) and Sec. 28 (Article II) of the
Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exact
limitations within which the right may be exercised or the correlative state duty may be obliged. However, the
following are some of the recognized restrictions: (1) national security matters and intelligence information, (2)
trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
3.ID.; ID.; ID.; ID.; SCOPE THEREOF; TERM "PUBLIC INTEREST" AND "PUBLIC CONCERN,"
CONSTRUED. In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be
"matters of public concern," access to which may be limited by law. Similarly, the state policy of full public
disclosure extends only to "transactions involving public interest" and may also be "subject to reasonable
conditions prescribed by law." As to the meanings of the terms "public interest" and "public concern," the
Court, in Legaspi v. Civil Service Commission, elucidated: "In determining whether or not a particular
information is of public concern there is no rigid test which can be applied. 'Public concern' like 'public interest'
is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or simply because such matters naturally arouse
the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis
whether the matter at issue is of interest or importance, as it relates to or affects the public " In Aquino-
Sarmiento v. Morato, the Court also held that official acts of public officers done in pursuit of their official
functions are public in character; hence, the records pertaining to such official acts and decisions are within the
ambit of the constitutional right of access to public records. DACcIH
4.ID.; ID.; ID.; ID ; RATIONALE. Under Republic Act No. 6713, public officials and employees are
mandated to "provide information on their policies and procedures in clear and understandable language, [and]
ensure openness of information, public consultations and hearings whenever appropriate . . .," except when
"otherwise provided by law or when required by the public interest." In particular, the law mandates free public
access, at reasonable hours, to the annual performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures
of all public officials and employees. In general, writings coming into the hands of public officers in connection
with their official functions must be accessible to the public, consistent with the policy of transparency of
governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those
to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing
their functions as public servants. Undeniably, the essence of democracy lies in the free flow of thought; but
thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited
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exchange of ideas among a well informed public that a government remains responsive to the changes desired
by the people.
5.ID.; ID.; ID.; ID.; ILL-GOTTEN WEALTH, CONSTRUED; RECOVERY OF ILL-GOTTEN WEALTH,
CONSIDERED A MATTER OF PUBLIC CONCERN AND IMBUED WITH PUBLIC INTEREST. With
such pronouncements of our government, whose authority emanates from the people, there is no doubt that the
recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest
We may also add that "ill-gotten wealth," by its very nature, assumes a public character. Based on the
aforementioned Executive Orders, "ill-gotten wealth" refers to assets and properties purportedly acquired,
directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through
or as a result of their improper or illegal use of government funds or properties; or their having taken undue
advantage of their public office; or their use of powers, influences or relationships, "resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines."
Clearly, the assets and properties referred to supposedly originated from the government itself. To all intents
and purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned to the
public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by
competent courts. Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is
that it may be used for national economic recovery. We believe the foregoing disquisition settles the question of
whether petitioner has a right to respondents' disclosure of any agreement that may be arrived at concerning the
Marcoses' purported ill-gotten wealth.
6.ID.; ID.; ID.; ID.; INCLUDES DISCLOSURE ON ANY PROPOSED SETTLEMENT BETWEEN
THE PCGG AND OSTENSIBLE OWNERS AND HOLDERS OF ILL-GOTTEN WEALTH SUBJECT TO
RESTRICTIONS. Considering the intent of the framers of the Constitution, we believe that it is incumbent
upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public
information on any proposed settlement they have decided to take up with the ostensible owners and holders of
ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a need,
of course, to observe the same restrictions on disclosure of information in general, as discussed earlier such
as on matters involving national security, diplomatic or foreign relations, intelligence and other classified
information. HCISED
7.CONSTITUTIONAL LAW; PCCG; E.O. NO. 14, SECTION 5 THEREOF, AS AMENDED BY E.O.
NO. 14-A; CONDITIONS UNDER WHICH THE PCGG MAY EXERCISE THE POWER TO GRANT
CRIMINAL IMMUNITY, ENUMERATED. In the present case, the power to grant criminal immunity was
conferred on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A. The said provision specifies that
the PCGG may exercise such authority under these conditions: (1) the person to whom criminal immunity is
granted provides information or testifies in an investigation conducted by the Commission; (2) the information
or testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or
accumulated ill-gotten property; and (3) such information or testimony is necessary to ascertain or prove guilt or
civil liability of such individual. From the wording of the law, it can be easily deduced that the person referred
to is a witness in the proceeding, not the principal respondent, defendant or accused.
8.ID.; ID., ID.; COMPROMISE AGREEMENT BETWEEN PCGG AND MARCOS IN CASE AT BAR, NOT
IN CONFORMITY THERETO; GRANT OF CRIMINAL IMMUNITY TO PRINCIPAL DEFENDANTS IN
THE ILL-GOTTEN WEALTH CASE, UNWARRANTED. Going now to the subject General and
Supplemental Agreements between the PCGGand the Marcos heirs, a cursory perusal thereof reveals serious
legal flaws. First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We
believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal
defendants in the spate of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the
provision is applicable mainly to witnesses who provide information or testify against a respondent, defendant
or accused in an ill-gotten wealth case. While the General Agreement states that the Marcoses "shall provide the
316
[government] assistance by way of testimony or deposition on any information [they] may have that could shed
light on the cases being pursued by the [government] against other parties," the clause does not fully comply
with the law. Its inclusion in the Agreement may have been only an afterthought, conceived in pro
forma compliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the
Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in
which the latter may have unlawfully acquired public property. HSaIDc

9.ID.; ID.; NO POWER TO GRANT TAX EXEMPTION EVEN UNDER THE COVER OF ITS
AUTHORITY TO COMPROMISE ILL-GOTTEN WEALTH CASES; PCGG'S COMMITMENT TO
EXEMPT FROM TAX THE PROPERTIES TO BE RETAINED BY MARCOS HEIRS, CONSIDERED A
VIOLATION OF THE CONSTITUTION. Under Item No. 2 of the General Agreement, the PCGG commits
to exempt from all forms of taxes the properties to be retained by the Marcos heirs. This is a clear violation
of the Constitution. The power to tax and to grant tax exemptions is vested in the Congress and, to a certain
extent, in the local legislative bodies. Section 28 (4), Article VI of the Constitution, specifically provides: "No
law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the
Congress." The PCGG has absolutely no power to grant tax exemption, even under the cover of its authority to
compromise ill-gotten wealth cases. Even granting that Congress enacts a law exempting the Marcoses from
paying taxes on their properties, such law will definitely not pass the test of the equal protection clause under
the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class
legislation. It will also violate the constitutional rule that "taxation shall be uniform and equitable."
10.ID.; ID.; GRANT OF TAX EXEMPTION TO MARCOSES DOES NOT FALL WITHIN THE POWER OF
COMMISSIONER OF INTERNAL REVENUE TO COMPROMISE TAXES OR ABATE TAX LIABILITY;
REQUISITES FOR A VALID EXERCISE OF THE POWER TO COMPROMISE TAXES OR TO ABATE
TAX LIABILITY, ENUMERATED. Neither can the stipulation be construed to fall within the power of the
commissioner of internal revenue to compromise taxes. Such authority may be exercised only when (1) there
isreasonable doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's financial position
demonstrates a clear inability to pay. Definitely, neither requisite is present in the case of the Marcoses, because
under the Agreement they are effectively conceding the validity of the claims against their properties, part of
which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the
commissioner to abate or cancel a tax liability. This power can be exercised only when (1) the tax appears to be
unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify the
collection of the tax due. In this instance, the cancellation of tax liability is done even before the determination
of the amount due. In any event, criminal violations of the Tax Code, for which legal actions have been filed in
court or in which fraud is involved, cannot be compromised.
11.ID.; ID.; CANNOT GUARANTEE THE DISMISSAL OF ALL PENDING CRIMINAL CASES AGAINST
THE MARCOSES. The government binds itself to cause the dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other courts. This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed before
a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and
control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter of
whom to present as witnesses, may lie within the sound discretion of the government prosecutor; but the court
decides, based on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired
by the trial court, is not lost despite a resolution, even by the justice secretary, to withdraw the information or to
dismiss the complaint. The prosecution's motion to withdraw or to dismiss is not the least binding upon the
court. On the contrary, decisional rules require the trial court to make its own evaluation of the merits of the
case, because granting such motion is equivalent to effecting a disposition of the case itself. Thus, the PCGG, as
the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases
against the Marcoses pending in the courts, for said dismissal is not within its sole power and
discretion. IEHScT
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12.ID.; ID.; STIPULATION IN COMPROMISE AGREEMENTS BETWEEN THE PCGG AND MARCOSES
WAIVING ALL GOVERNMENT CLAIMS AGAINST THE LATTER, CONSIDERED CONTRARY TO
LAW AND A VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION CLAUSE. The
government also waives all claims and counterclaims, "whether past, present, or future, matured or inchoate,"
against the Marcoses. Again, this all-encompassing stipulation is contrary to law. Under the Civil Code,an
action for future fraud may not be waived. The stipulation in the Agreement does not specify the exact scope of
future claims against the Marcoses that the government thereby relinquishes. Such vague and broad statement
may well be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a
license to perpetrate fraud against the government without any liability at all. This is a palpable violation of the
due process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses beyond
the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual warrant for
public officials to amass public funds illegally, since there is an open option to compromise their liability in
exchange for only a portion of their ill-gotten wealth.
13.ID.; ID.; COMPROMISE AGREEMENTS BETWEEN THE PCGG AND MARCOSES IN CASE AT BAR
DO NOT PROVIDE FOR DEFINITE PERIOD FOR FULFILLMENT OF THE PRESTATION. The
Agreements do not provide for a definite or determinable period within which the parties shall fulfill their
respective prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets.
14.ID.; ID.; ID.; DO NOT STATE WITH SPECIFICITY THE STANDARDS FOR DETERMINING WHICH
ASSETS TO BE FORFEITED AND WHICH SHALL BE RETAINED BY THE MARCOSES. The
Agreements do not state with specificity the standards for determining which assets shall be forfeited by the
government and which shall be retained by the Marcoses. While the Supplemental Agreement provides that the
Marcoses shall be entitled to 25 percent of the $356 million Swiss deposits (less government recovery
expenses), such sharing arrangement pertains only to the said deposits. No similar splitting scheme is defined
with respect to the other properties. Neither is there, anywhere in the Agreements, a statement of the basis for
the 25-75 percent sharing ratio. Public officers entering into an arrangement appearing to be manifestly and
grossly disadvantageous to the government, in violation of the Anti-Graft and Corrupt Practices Act, invite their
indictment for corruption under the said law.
15.ID.; ID.; ID.; CONSIDERED INVALID; CASE AT BAR. The absence of then President Ramos'
approval of the principal Agreement, an express condition therein, renders the compromise incomplete and
unforceable. Nevertheless, as detailed above, even if such approval were obtained the Agreements would still
not be valid. From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental
Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative
of the Constitution and the laws aforementioned.
16.REMEDIAL LAW; COMPROMISE; PROHIBITED COMPROMISE, ENUMERATED. In general, the
law encourages compromises in civil cases, except with regard to the following matters: the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future
support, (5) the jurisdiction of courts, and (6) future legitime. And like any other contract, the terms and
conditions of a compromise must not be contrary to laws, morals, good customs, public policy or public order.
A compromise is binding and has the force of law between the parties, unless the consent of a party is vitiated
such as by mistake, fraud, violence, intimidation or undue influence or when there is forgery, or if the
terms of the settlement are so palpably unconscionable. In the latter instances, the agreement may be invalidated
by the courts.
17.ID.; ID.; EFFECT THEREOF IN CIVIL ACTION. One of the consequences of a compromise, and
usually its primary object, is to avoid or to end a litigation. In fact, the law urges courts to persuade the parties
in a civil case to agree to a fair settlement. As an incentive, a court may mitigate damages to be paid by a losing
party who shows a sincere desire to compromise.
18.ID.; ID.; RELATING TO CIVIL LIABILITY ARISING FROM AN OFFENSE DOES NOT
AUTOMATICALLY EXTINGUISH CRIMINAL LIABILITY; POWER TO GRANT CRIMINAL
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IMMUNITY MUST BE SPECIFICALLY CONFERRED. Any compromise relating to the civil liability
arising from an offense does not automatically terminate the criminal proceeding against or extinguish the
criminal liability of the malefactor. While a compromise in civil suits is expressly authorized by law, there is no
similar general sanction as regards criminal liability. The authority must be specifically conferred. CSDcTA
19.ID.; COURTS; SUPREME COURT HAS JURISDICTION OVER ISSUE INVOLVING THE PRECISE
INTERPRETATION IN TERMS OF SCOPE OF THE TWIN CONSTITUTIONAL PROVISIONS ON
PUBLIC TRANSACTIONS In Taada and Legaspi, we upheld therein petitioners' resort to
a mandamus proceeding, seeking to enforce a public right as well as to compel performance of a public duty
mandated by no less than the fundamental law. Further, Section 5, Article VIII of the Constitution, expressly
confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus. Respondents argue that petitioner should have properly sought relief before the
Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements
is pending resolution. There may seem to be some merit in such argument; if petitioner is merely seeking to
enjoin the enforcement of the compromise and/or to compel thePCGG to disclose to the public the terms
contained in said Agreements. However, petitioner is here seeking the public disclosure of "all negotiations and
agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and
Agreement between the PCGG and the Marcos heirs." In other words, this petition is not confined to the
Agreements that have already been drawn, but likewise to any ongoing or future undertaking towards settlement
on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of
scope, of the twin constitutional provisions on "public transactions." This broad and prospective relief sought by
the instant petition brings it out of the realm of Civil Case No. 0141.

DECISION

PANGANIBAN, J p:

Petitioner asks this Court to define the nature and the extent of the people's constitutional right to
information on matters of public concern. Does this right include access to the terms of government
negotiations, prior to their consummation or conclusion? May the government, through the Presidential
Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth? More specifically, are the
"General Agreement" and "Supplemental Agreement," both dated December 28, 1993 and executed
between the PCGG and the Marcos heirs, valid and binding?
The Case
These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin
respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any
agreement with the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the
properties and assets of Ferdinand Marcos located in the Philippines and/or abroad including the so-
called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and
agreement, be they ongoing or perfected, and all documents related to or relating to such negotiations and
agreement between the PCGG and the Marcos heirs." 1
The Facts
Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated
the prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public treasury
and the systematic subjugation of the country's economy," alleges that what impelled him to bring this
319
action were several news reports 2 bannered in a number of broadsheets sometime in September 1997.
These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in
various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the
government (through PCGG) and the Marcos heirs, on how to split or share these assets. Cdpr
Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to
disclose publicly all its transactions involving the national interest, 4 demands that respondents make public
any and all negotiations and agreements pertaining to PCGG's task of recovering the Marcoses' ill-gotten
wealth. He claims that any compromise on the alleged billions of ill-gotten wealth involves an issue of
"paramount public interest," since it has a "debilitating effect on the country's economy" that would be
greatly prejudicial to the national interest of the Filipino people. Hence, the people in general have a right to
know the transactions or deals being contrived and effected by the government.
Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs.
They claim, though, that petitioner's action is premature, because there is no showing that he has asked
the PCGG to disclose the negotiations and the Agreements. And even if he has, PCGG may not yet be
compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not
become effective and binding.
Respondents further aver that the Marcos heirs have submitted the subject Agreements to the
Sandiganbayan for its approval in Civil Case No. 141, entitledRepublic v. Heirs of Ferdinand E. Marcos,
and that the Republic opposed such move on the principal grounds that (1) said Agreements have not been
ratified by or even submitted to the President for approval, pursuant to Item No. 8 of the General
Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the
collation and submission of an inventory of their assets. The Republic also cited an April 11, 1995
Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a similar petition filed by the
Marcoses' attorney-in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to
then PCGG Chairman Magtanggol Gunigundo, categorically stated:
"This is to reiterate my previous position embodied in the Palace Press Release of 6
April 1995 that I have not authorized you to approve the Compromise Agreements of
December 28, 1993 or any agreement at all with the Marcoses, and would have disapproved
them had they been submitted to me.
"The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to
approve said Agreements, which I reserve for myself as President of the Republic of the
Philippines."
The assailed principal Agreement 6 reads:
"GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993, by and between
The Republic of the Philippines, through the Presidential Commission on Good
Government (PCGG), a governmental agency vested with authority defined
underExecutive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building,
Pasig, Metro Manila, represented by its Chairman referred to as the FIRST PARTY,
and
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and
Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal
St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
320
 Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.
WITNESSETH:
WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism
and love of country and of the entire Filipino people, and their desire to set up a foundation and
finance impact projects like installation of power plants in selected rural areas and initiation of
other community projects for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal
Tribunal of December 21, 1990, that the $356 million belongs in principle to the Republic of
the Philippines provided certain conditionalities are met, but even after 7 years, the FIRST
PARTY has not been able to procure a final judgment of conviction against the PRIVATE
PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation
which, as proven by the past 7 years, is consuming money, time and effort, and is counter-
productive and ties up assets which the FIRST PARTY could otherwise utilize for its
Comprehensive Agrarian Reform Program, and other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity
and reconciliation in order to bind the nation's wounds and start the process of rebuilding this
nation as it goes on to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims which the parties may
have against one another, whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein,
the parties agree as follows:
1.The parties will collate all assets presumed to be owned by, or held by other parties for the
benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets
covered by the settlement. The subject assets shall be classified by the nature thereof,
namely: (a) real estate; (b) jewelry; (c) paintings and other works of art; (d) securities;
(e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets
which could not appropriately fall under any of the preceding classification. The list
shall be based on the full disclosure of the PRIVATE PARTY to insure its accuracy.
2.Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the
FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY. The
assets of the PRIVATE PARTY shall be net of and exempt from, any form of taxes due
the Republic of the Philippines. However, considering the unavailability of all pertinent
and relevant documents and information as to balances and ownership, the actual
specification of assets to be retained by the PRIVATE PARTY shall be covered by
supplemental agreements which shall form part of this Agreement.
3.Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by
trustees, nominees, agents or foundations are hereby waived over by the PRIVATE-
PARTY in favor of the FIRST PARTY. For this purpose, the parties shall cooperate in
taking the appropriate action judicial and/or extrajudicial, to recover the same for the
FIRST PARTY.
4.All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the
FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and
binding against said PARTY for use by the FIRST PARTY in withdrawing any account
321
 and/or recovering any asset. The PRIVATE PARTY withdraws any objection to the
withdrawal by and/or release to the FIRST PARTY by the Swiss banks and/or Swiss
authorities of the $356 million, its accrued interests, and/or any other account; over
which the PRIVATE PARTY waives any right, interest or participation in favor of the
FIRST PARTY. However, any withdrawal or release of any account aforementioned by
the FIRST PARTY shall be made in the presence of any authorized representative of
the PRIVATE PARTY.
5.The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators, lawyers,
or any other party acting in similar capacity in behalf of the PRIVATE PARTY are
hereby informed through this General Agreement to insure that it is fully implemented
and this shall serve as absolute authority from both parties for full disclosure to the
FIRST PARTY of said assets and for the FIRST PARTY to withdraw said account
and/or assets and any other assets which the FIRST PARTY on its own or through the
help of the PRIVATE PARTY/their trustees, etc., may discover.
6.Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is
being held by another for the benefit of the PRIVATE PARTY and which is not
included in the list per No. 1 for whatever reason shall automatically belong to the
FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives
any right thereto.

7.This Agreement shall be binding on, and inure to the benefit of, the parties and their
respective legal representatives, successors and assigns and shall supersede any other
prior agreement.
8.The PARTIES shall submit this and any other implementing Agreements to the President of
the Philippines for approval. In the same manner, the PRIVATE PARTY shall provide
the FIRST PARTY assistance by way of testimony or deposition on any information it
may have that could shed light on the cases being pursued by the FIRST PARTY
against other parties. The FIRST PARTY shall desist from instituting new suits already
subject of this Agreement against the PRIVATE PARTY and cause the dismissal of all
other cases pending in the Sandiganbayan and in other courts.
9.In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the
PARTIES shall be restored automatically to the status quo ante the signing of this
Agreement.
For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty.
Simeon M. Mesina, Jr., as their only Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman

322
 ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA.
IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., &
IRENE MARCOS ARANETA
By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR. 7
[Sgd.] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact"
Petitioner also denounces this supplement to the above Agreement: 8
"SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993, by and between
The Republic of the Philippines, through the Presidential Commission on Good
Government (PCGG), a governmental agency vested with authority defined
underExecutive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building,
Pasig, Metro Manila, represented by its Chairman Magtanggol C. Gunigundo,
hereinafter referred to as the FIRST PARTY,
and
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and
Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal
St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos
Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.
WITNESSETH:
The parties in this case entered into a General Agreement dated Dec. 28, 1993;
The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue
over local assets located in the Philippines against parties other than the FIRST
PARTY.
The parties hereby agree that all expenses related to the recovery and/or withdrawal of
all assets including lawyers' fees, agents' fees, nominees' service fees, bank charges,
traveling expenses and all other expenses related thereto shall be for the account of the
PRIVATE PARTY.
In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY
shall be entitled to the equivalent of 25% of the amount that may be eventually withdrawn
from said $356 million Swiss deposits.
IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of
December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
323
 GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL G. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA.
IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., &
IRENE MARCOS-ARANETA
By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR. 9
[Sgd] IRENE MARCOS-ARANETA
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact"
Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March
23, 1998, enjoining respondents, their agents and/or representatives from "entering into, or perfecting and/or
executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and concerning
their ill-gotten wealth."
Issues
The Oral Argument, held on March 16, 1998, focused on the following issues: Cdpr
"(a)Procedural:
(1)Whether or not the petitioner has the personality or legal standing to file the instant
petition; and
(2)Whether or not this Court is the proper court before which this action may be filed.
(b)Substantive:
(1)Whether or not this Court could require the PCGG to disclose to the public the
details of any agreement, perfected or not, with the Marcoses; and
(2)Whether or not there exist any legal restraints against a compromise agreement
between the Marcoses and the PCGG relative to the Marcoses' ill-gotten wealth." 11
After their oral presentations, the parties filed their respective memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court
a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are "among
the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized
by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class
Plaintiffs No. 92-15526, U .S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994 and
the Decision of the Swiss Supreme Court of December 10, 1997." As such, they claim to have personal and
direct interest in the subject matter of the instant case, since a distribution or disposition of the Marcos
properties may adversely affect their legitimate claims. In a minute Resolution issued on August 24, 1998,
324
the Court granted their motion to intervene and required the respondents to comment thereon. The
September 25, 1998 Comment 12 of the solicitor general on said motion merely reiterated his aforecited
arguments against the main petition. 13
The Court's Ruling
The petition is imbued with merit.
First Procedural Issue:
Petitioner's Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file
the instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people and [is], in truth
and in fact, part of the public treasury," any compromise in relation to it would constitute a diminution of
the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery
of such assets.
Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an
issue "of transcendental importance to the public." He asserts that ordinary taxpayers have a right to initiate
and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities,
if the issues raised are "of paramount public interest;" and if they "immeasurably affect the social,
economic, and moral well-being of the people."
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, 14such as in this case. He invokes several decisions
in 15 of this Court which have set aside the procedural matter of locus standi, when the subject of the case
involved public interest.
On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no
standing to institute the present action, because no expenditure of public funds is involved and said
petitioner has no actual interest in the alleged agreement. Respondents further insist that the instant petition
is premature, since there is no showing that petitioner has requested PCGG to disclose any such negotiations
and agreements; or that, if he has, the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his
legal standing to institute the instant petition. Access to public documents and records is a public right, and
the real parties in interest are the people themselves. 16
In Taada v. Tuvera, 17 the Court asserted that when the issue concerns a public right and the object
of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in
interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of
the laws, he need not show that he has any legal or special interest in the result of the action. 18 In the
aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection with the rule that
laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be
enforced "is a public right recognized by no less than the fundamental law of the land."
Legaspi v. Civil Service Commission, 20 while reiterating Taada, further declared that "when a
mandamus proceeding involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which
possesses the right." 21
Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been
involved under the questioned contract for the development, the management and the operation of the
Manila International Container Terminal, "public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of the country and the magnitude
325
of the financial consideration involved." We concluded that, as a consequence, the disclosure provision
in the Constitution would constitute sufficient authority for upholding the petitioner's standing.

Similarly, the instant petition is anchored on the right of the people to information and access to
official records, documents and papers a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the
two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the
enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be
allowed.
In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention
of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the Jopsons is
not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a legal interest in
the subject matter of the instant case, since a distribution or disposition of the Marcoses' ill-gotten properties
may adversely affect the satisfaction of their claims.
Second Procedural Issue:
The Court's Jurisdiction
Petitioner asserts that because this petition is an original action for mandamus and one that is not
intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was proper.
He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court original
jurisdiction over petitions for prohibition and mandamus.
The solicitor general, on the other hand, argues that the petition has been erroneously brought before
this Court, since there is neither a justiciable controversy nor a violation of petitioner's rights by the PCGG.
He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil Case No. 0141,
which has yet to dispose of the issue; thus, this petition is premature. Furthermore, respondents themselves
have opposed the Marcos heirs' motion, filed in the graft court, for the approval of the subject Agreements.
Such opposition belies petitioner's claim that the government, through respondents, has concluded a
settlement with the Marcoses as regards their alleged ill-gotten assets.
In Taada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to
enforce a public right as well as to compel performance of a public duty mandated by no less than the
fundamental law. 23 Further, Section 5, Article VIII of the Constitution, expressly confers upon the
Supreme Court originaljurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto and
habeas corpus.
Respondents argue that petitioner should have properly sought relief before the Sandiganbayan,
particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending
resolution. There may seem to be some merit in such argument; if petitioner is merely seeking to enjoin the
enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms contained in
said Agreements. However, petitioner is here seeking the public disclosure of "all negotiations and
agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and
agreement between thePCGG and the Marcos heirs."
In other words, this petition is not confined to the Agreements that have already been drawn, but
likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos loot.
Ineluctably, the core issue boils down to the precise interpretation, in terms of scope, of the twin
constitutional provisions on "public transactions." This broad and prospective relief sought by the instant
petition brings it out of the realm of Civil Case No. 0141.
First Substantive Issue:
Public Disclosure of Terms of Any Agreement, Perfected or Not
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 In seeking the public disclosure of negotiations and agreements pertaining to a compromise
settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the following
provisions of the Constitution:
"Sec. 7[Article III]. 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."
"Sec. 28[Article II]. 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."
Respondents' opposite view is that the above constitutional provisions refer to completed and
operative official acts, not to those still being considered. As regards the assailed Agreements entered into
by the PCGG with the Marcoses, there is yet no right of action that has accrued, because said Agreements
have not been approved by the President, and the Marcos heirs have failed to fulfill their express
undertaking therein. Thus, the Agreements have not become effective. Respondents add that they are not
aware of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-
gotten assets.
The "information" and the "transactions" referred to in the subject provisions of the
Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exact
limitations within which the right may be exercised or the correlative state duty may be obliged. However,
the following are some of the recognized restrictions: (1) national security matters and intelligence
information, (7) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential
information.

Limitations to the Right:

(1)National Security Matters
At the very least, 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. 24 But where there is no need to protect such state secrets, the privilege may not
be invoked to withhold documents and other information, 25 provided that they are examined "in strict
confidence" and given "scrupulous protection."
Likewise, 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. 26
(2)Trade Secrets and Banking Transactions
The drafters of the Constitution also unequivocally affirmed that, aside from national security
matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual Property
Code 27 and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits
Act 28 ) are also exempted from compulsory disclosure. 29
(3)Criminal Matters
Also excluded are classified law enforcement matters, such as those relating to the apprehension, the
prosecution and the detention of criminals, 30 which courts may not inquire into prior to such arrest,
detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free
public access to, for example, police information regarding rescue operations, the whereabouts of fugitives,
or leads on covert criminal activities. cdrep
(4)Other Confidential Information
327
 The Ethical Standards Act 31 further prohibits public officials and employees from using or
divulging "confidential or classified information officially known to them by reason of their office and not
made available to the public." 32
Other acknowledged limitations to information access include diplomatic correspondence, closed
door Cabinet meetings and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court. 33
Scope: Matters of Public Concern and
Transactions Involving Public Interest
In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters
of public concern," access to which may be limited by law. Similarly, the state policy of full public
disclosure extends only to "transactions involving public interest" and may also be "subject to reasonable
conditions prescribed by law." As to the meanings of the terms "public interest" and "public concern," the
Court, in Legaspiv. Civil Service Commission, 35 elucidated:
"In determining whether or not a particular information is of public concern there is no
rigid test which can be applied. 'Public concern' like 'public interest' is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
on a case by case basis whether the matter at issue is of interest or importance, as it relates to or
affects the public."
Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to
ensure that government positions requiring civil service eligibility are occupied only by persons who are
eligibles." So was the need to give the general public adequate notification of various laws that regulate and
affect the actions and conduct of citizens, as held in Taada. Likewise did the "public nature of the loanable
funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang
Pambansa)" qualify the information sought in Valmonte as matters of public interest and concern.
In Aquino-Sarmiento v. Morato, 36 the Court also held that official acts of public officers done in pursuit of
their official functions are public in character; hence, the records pertaining to such official acts and
decisions are within the ambit of the constitutional right of access to public records.

Under Republic Act No. 6713, public officials and employees are mandated to "provide information
on their policies and procedures in clear and understandable language, [and] ensure openness of
information, public consultations and hearings whenever appropriate . . .," except when "otherwise provided
by law or when required by the public interest." In particular, the law mandates free public access, at
reasonable hours, to the annual performance reports of offices and agencies of government and government-
owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all
public officials and employees. 37
In general, writings coming into the hands of public officers in connection with their official
functions must be accessible to the public, consistent with the policy of transparency of governmental
affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom
they have entrusted the affairs of the government are honestly, faithfully and competently performing their
functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of
thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better perspective
of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the
government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and
uninhibited exchange of ideas among a well-informed public that a government remains responsive to the
changes desired by the people. 40
328
The Nature of the Marcoses'
Alleged Ill-Gotten Wealth
We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and their cronies in February 1986, the
new government headed by President Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten
properties amassed by the leaders and supporters of the previous regime and [to] protect the interest of the
people through orders of sequestration or freezing of assets or accounts." 41 Thus, President Aquino's very
first executive orders (which partook of the nature of legislative enactments) dealt with the recovery of these
alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled
the country, created the PCGG which was primarily tasked to assist the President in the recovery of vast
government resources allegedly amassed by former President Marcos, his immediate family, relatives and
close associates both here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had
knowledge or possession of ill-gotten assets and properties were warned and, under pain of penalties
prescribed by law, prohibited from concealing, transferring or dissipating them or from otherwise frustrating
or obstructing the recovery efforts of the government.
On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to
the PCGG which, taking into account the overriding considerations of national interest and national
survival, required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth.
With such pronouncements of our government, whose authority emanates from the people, there is
no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and
imbued with public interest. 42 We may also add that "ill-gotten wealth," by its very nature, assumes a
public character. Based on the aforementioned Executive Orders, "ill-gotten wealth" refers to assets and
properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family,
relatives and close associates through or as a result of their improper or illegal use of government funds or
properties; or their having taken undue advantage of their public office; or their use of powers, influences or
relationships, "resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino
people and the Republic of the Philippines." Clearly, the assets and properties referred to supposedly
originated from the government itself. To all intents and purposes, therefore, they belong to the people. As
such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of
positive claims of certain persons as may be adjudged by competent courts. Another declared overriding
consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic
recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a right to
respondents' disclosure of any agreement that may be arrived at concerning the Marcoses' purported ill-
gotten wealth.
Access to Information on Negotiating Terms
But does the constitutional provision likewise guarantee access to information
regarding ongoing negotiations or proposals prior to the final agreement? This same clarification was sought
and clearly addressed by the constitutional commissioners during their deliberations, which we quote
hereunder: 43
"MR. SUAREZ.
And when we say 'transactions' which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?
329
 "MR. OPLE.
The 'transactions' used here, I suppose, is generic and, therefore, it can cover both steps
leading to a contract, and already a consummated contract, Mr. Presiding. Officer.
"MR. SUAREZ.
This contemplates inclusion of negotiations leading to the consummation of the
transaction?
"MR. OPLE.
Yes, subject to reasonable safeguards on the national interest."
Considering the intent of the framers of the Constitution, we believe that it is incumbent upon
the PCGG and its officers, as well as other government representatives, to disclose sufficient public
information on any proposed settlement they have decided to take up with the ostensible owners and holders
of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications 44 during the stage when
common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a
need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier
such as on matters involving national security, diplomatic or foreign relations, intelligence and other
classified information.
Second Substantive Issue:
Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between the government and the Marcoses
will be a virtual condonation of all the alleged wrongs done by them, as well as an unwarranted permission
to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on entering into a compromise with
the Marcos heirs, provided the agreement does not violate any law. cda
Prohibited Compromises
In general, the law encourages compromises in civil cases, except with regard to the following
matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any ground for
legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future legitime. 45 And like any
other contract, the terms and conditions of a compromise must not be contrary to law, morals, good
customs, public policy or public order. 46 A compromise is binding and has the force of law between the
parties, 47 unless the consent of a party is vitiated such as by mistake, fraud, violence, intimidation or
undue influence or when there is forgery, or if the terms of the settlement are so palpably
unconscionable. In the latter instances, the agreement may be invalidated by the courts. 48
Effect of Compromise
on Civil Actions
One of the consequences of a compromise, and usually its primary object, is to avoid or to end a
litigation. 49 In fact, the law urges courts to persuade the parties in a civil case to agree to a fair
settlement. 50 As an incentive, a court may mitigate damages to be paid by a losing party who shows a
sincere desire to compromise. 51
In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and
criminal immunity to Jose Y. Campos and family, the Court held that in the absence of an express
prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG cases.
Such principle is pursuant to the objectives of EO No. 14, particularly the just and expeditious recovery of
ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle was upheld
in Benedicto v. Board of Administrators of Television Stations RPN, BBC and
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IBC 53 and Republic v. Benedicto, 54 which ruled in favor of the validity of thePCGG compromise
agreement with Roberto S. Benedicto.
Immunity from
Criminal Prosecution
However, any compromise relating to the civil liability arising from an offense does not
automatically terminate the criminal proceeding against or extinguish the criminal liability of the
malefactor. 55 While a compromise in civil suits is expressly authorized by law, there is no similar general
sanction as regards criminal liability. The authority must be specifically conferred. In the present case, the
power to grant criminal immunity was conferred on PCGG by Section 5 of EO No. 14, as amended by EO
No. 14-A, which provides:
"SEC. 5.The Presidential Commission on Good Government is authorized to grant
immunity from criminal prosecution to any person who provides information or testifies in any
investigation conducted by such Commission to establish the unlawful manner in which any
respondent, defendant or accused has acquired or accumulated the property or properties in
question in any case where such information or testimony is necessary to ascertain or prove the
latter's guilt or his civil liability. The immunity thereby granted shall be continued to protect
the witness who repeats such testimony before the Sandiganbayan when required to do so by
the latter or by the Commission."

The above provision specifies that the PCGG may exercise such authority under these conditions: (1)
the person to whom criminal immunity is granted provides information or testifies in an investigation
conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in which
the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3) such information
or testimony is necessary to ascertain or prove guilt or civil liability of such individual. From the wording of
the law, it can be easily deduced that the person referred to is a witness in the proceeding, not the principal
respondent, defendant or accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his
family was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this Commission, his
voluntary surrender of the properties and assets [] disclosed and declared by him to belong to deposed
President Ferdinand E. Marcos [] to the Government of the Republic of the Philippines[;] his full,
complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the
Philippine Government." 56 Moreover, the grant of criminal immunity to the Camposes and the Benedictos
was limited to acts and omissions prior to February 25, 1996. At the time such immunity was granted, no
criminal eases have yet been filed against them before the competent courts.
Validity of the PCGG-Marcos
Compromise Agreements
Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos
heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not conform to the
above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity under Section 5 cannot be
granted to the Marcoses, who are the principal defendants in the spate of ill-gotten wealth cases now
pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses who
provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case.
While the General Agreement states that the Marcoses "shall provide the [government] assistance by
way of testimony or deposition on any information [they] may have that could shed light on the cases being
pursued by the [government] against other parties," 57 the clause does not fully comply with the law. Its
inclusion in the Agreement may have been only an afterthought, conceived in pro forma compliance with
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Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos heirs has
indeed provided vital information against any respondent or defendant as to the manner in which the latter
may have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms
of taxes the properties to be retained by the Marcos heirs. This is a clear violation of the Constitution. The
power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local
legislative bodies. 58 Section 28 (4), Article VI of the Constitution, specifically provides: "No law granting
any tax exemption shall be passed without the concurrence of a majority of all the Members of the
Congress." The PCGG has absolutely no power to grant tax exemptions, even under the cover of its
authority to compromise ill-gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their
properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights.
Any special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will
also violate the constitutional rule that "taxation shall be uniform and equitable." 59
Neither can the stipulation be construed to fall within the power of the commissioner of internal
revenue to compromise taxes. Such authority may be exercised only when (1) there is reasonable doubt as
to the validity of the claim against the taxpayer, and (2) the taxpayer's financial position demonstrates
a clear inalibity to pay. 60 Definitely, neither requisite is present in the case of the Marcoses, because under
the Agreement they are effectively conceding the validity of the claims against their properties, part of
which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the
commissioner to abate or cancel a tax liability. This power can be exercised only when (1) the tax appears to
be unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify the
collection of the tax due. 61 In this instance, the cancellation of tax liability is done even before the
determination of the amount due. In any event, criminal violations of the Tax Code, for which legal actions
have been filed in court or in which fraud is involved, cannot be compromised.62
Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs,
pending before the Sandiganbayan and other courts. 63 This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed
before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full
discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled,
including the matter of whom to present as witnesses, may lie within the sound discretion of the government
prosecutor; 64 but the court decides, based on the evidence proffered, in what manner it will dispose of the
case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the justice
secretary, to withdraw the information or to dismiss the complaint. 65 The prosecution's motion to withdraw
or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial court
to make its own evaluation of the merits of the case, because granting such motion is equivalent to effecting
a disposition of the case itself. 66
Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the
dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not
within its sole power and discretion.
Fourth, the government also waives all claims and counterclaims, "whether past, present, or future,
matured or inchoate," against the Marcoses. 67 Again, this all-encompassing stipulation is contrary to law.
Under the Civil Code,an action for future fraud may not be waived. 68 The stipulation in the Agreement
does not specify the exact scope of future claims against the Marcoses that the government thereby
relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of any
of the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any
liability at all. This is a palpable violation of the due process and equal protection guarantees of the
Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also sets a dangerous
precedent for public accountability. It is a virtual warrant for public officials to amass public funds illegally,
332
since there is an open option to compromise their liability in exchange for only a portion of their ill-gotten
wealth.
Fifth, the Agreements do not provide for a definite or determinable period within which the parties
shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an inventory of
their total assets.
Sixth, the Agreements do not state with specificity the standards for determining which assets shall
be forfeited by the government and which shall be retained by the Marcoses. While the Supplemental
Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits
(less government recovery expenses), such sharing arrangement pertains only to the said deposits. No
similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the
Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an
arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of
the Anti-Graft and Corrupt Practices Act, 69 invite their indictment of corruption under the said law.
Finally, the absence of then President Ramos' approval of the principal Agreement, and express
condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed above,
even if such approval were obtained, the Agreements would still not be valid. cdasia
From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental
Agreements, both dated December 28, 1993, which the PCGGentered into with the Marcos heirs, are
violative of the Constitution and the laws aforementioned.
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreements dated
December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL AND VOID
for being contrary to law and the Constitution. Respondent PCGG, its officers and all government
functionaries and officials who are or may be directly or indirectly involved in the recovery of the alleged
ill-gotten wealth of the Marcoses and their associates are DIRECTED to disclose to the public the terms of
any proposed compromise settlement, as well as the final agreement, relating to such alleged ill-gotten
wealth, in accordance with the discussions embodied in this Decision. No pronouncement as to costs.
SO ORDERED.

Separate Opinions

VITUG, J .:

In concur in the results, pro hac vice, for it is paramount that matters of national interest deserve a
proper place in any forum. The procedural rules in the courts of law, like the locus standi of petitioner
Francisco I. Chavez, the propriety of the special legal action of mandamus used as a vehicle to reach this
Court on the issues involved and considered by the Court, as well as kindred legal technicalities and nicety
raised by respondents to thwart the petition are no trickle matters, to be sure, but I do not see them to be
cogent reasons to deny to the Court its taking cognizance of the case.
It is a cardinal principle in constitutional adjudication that anyone who invokes it has a personal and
substantial interest on the dispute. 1 Jurisprudentially there is either the lenient or the strict approach in the
appreciation of legal standing. The liberal approach recognizes legal standing to raise constitutional issues
of nontraditional plaintiffs, such as taxpayers and citizens, directly affecting them. 2 A developing trend
appears to be towards a narrow and exacting approach, requiring that a logical nexus must be shown
between the status asserted and the claim sought to be adjudicated in order to ensure that one is the proper
and appropriate party to invoke judicial power. 3
With respect to the right to information, it being a public right where the real parties in interest are
the people themselves in general 4 and where the only recognized limitation is "public concern," it would
333
 seem that the framers of the Constitution have favored the liberal approach. Rev. Fr. Joaquin Bernas, S.J., a
member of the Constitutional Commission, observes: LLphil
The real problem, however, lies in determining what matters are of public concern and
what are not. Unwittingly perhaps, by this provision the Constitutionmight have opened a
Pandora's box. For certainly every act of a public officer in the conduct of the governmental
process is a matter of public concern. Jurisprudence in fact has said that "public concern," like
"public interest," eludes exact definition and embraces a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives or simply because
such matters arouse the interest of an ordinary citizen. 5
Corollarily, there is need of preserving a certain degree of confidentiality in matters involving
national security and public relations, to cite a few, 6 and until a balance is struck, the Court may be
constrained on occasions to accept an eclectic notion that frees itself from the shackles of the trenchant
requisites of locus standi.
The Presidential Commission on Good Government (PCGG) has a limited life in carrying out its
tasks and time is running short. It is thus imperative that the Court must hold even now, and remind PCGG,
that it has indeed exceeded its bounds in entering into the General and Supplemental Agreements. The
agreements clearly suffer from Constitutional and statutory infirmities, 7 to wit: (1) The agreements
contravene the statute in granting criminal immunity to the Marcos heirs; 8 (2)PCGG's commitment to
exempt from all forms of taxes the property to be retained the Marcos' heirs controverts the
Constitution; 9 and (3) the government's undertaking to cause the dismissal of all cases filed against the
Marcoses pending before the Sandiganbayan and other courts encroaches upon judicial powers. I also see,
like my other colleagues, too much vagueness on such items as the period within which the parties shall
fulfill their respective prestations and the lack of appropriate standards for determining the assets to be
forfeited by the government and those to be retained by the Marcoses.
In this respect, while there is legal possibility when the terms of a contract are not totally invalidated
and only those opposed to law, morals, good customs, public order and public policy are rendered
inefficacious, when, however, the assailed provisions can be seen to be of essence, like here, the agreement
in its entirety can be adversely affected. True, the validity or invalidity of a contract is a matter that
generally may not be passed upon in a mandamus petition, for it is as if petitioner were seeking declaratory
relief or an advisory opinion from this Court over which it has no original jurisdiction, 10 the immediacy
and significance of the issues, nevertheless, has impelled the Court rightly assume jurisdiction and to
resolve the incidental, albeit major, issues that evidently and continually vex the parties.
WHEREFORE, I vote to grant the petition. LLphil
||| (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, [December 9, 1998],
360 PHIL 133-177)

EN BANC

[G.R. No. 128096. January 20, 1999.]

PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE

SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT
OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO,
and THE PEOPLE OF THE PHILIPPINES, respondents.

ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-intervenors.

334
Fortun Narvasa & Salazar for petitioner.
Chavez Laureta & Associates for petitioners-intervenors.
The Solicitor General for public respondents.
Free Legal Assistance Group for private respondents.

SYNOPSIS

This is a petition for prohibition and mandamus filed by petitioner Panfilo M. Lacson and petitioners-
intervenors Romeo Acop and Francisco Zubia, Jr. questioning the constitutionality of Sections 4 and 7
of Republic Act 8249 an Act which further defines the jurisdiction of the Sandiganbayan. They also seek to
prevent the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 against them on
the ground of lack of jurisdiction. They further argued that if the case is tried before the Sandiganbayan, their
right to procedural due process would violate as they could no longer avail of the two-tiered appeal to the
Sandiganbayan, which they acquired under RA 7975, before recourse to the Supreme Court. TSEcAD
The Court ruled that the challengers of Sections 4 and 7 of RA 8249 failed to rebut the presumption of
constitutionality and reasonableness of the questioned provisions. The classification between those pending
cases involving the concerned public officials whose trial has not yet commenced and whose cases could have
been affected by the amendments of the Sandiganbayan jurisdiction under RA 8249, as against those cases
where trial had already started as of the approval of the law, rests on substantial distinction that makes real
differences. Since it is within the power of the Congress to define the jurisdiction of courts subject to the
constitutional limitations, it can be reasonably anticipated that an alteration of that jurisdiction would
necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory
provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a
different category from those similarly situated as them. Moreover, petitioner's and intervenor's contention that
their right to a two-tiered appeal which they acquired under RA 7975 has been diluted by the enactment of RA
8249 is incorrect. The same contention had already been rejected by the Court considering that the right to
appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure
provided for in the statutory right to appeal is not included in the prohibition against ex post facto law.RA
8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the
nature of an ex post facto law.
Anent the issue of jurisdiction, the Court ruled that for failure to show in the amended informations that the
charge of murder was intimately connected with the discharge of official functions of those accused PNP
officers, the offense charged in the subject criminal cases is plain murder and therefore, within the exclusive
jurisdiction of the Regional Trial Court, not the Sandiganbayan. Accordingly, the constitutionality of Sections 4
and 7 of RA 8249 is sustained and the Addendum to the March 5, 1997 resolution of the Sandiganbayan is
reversed. CaEIST

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; SANDIGANBAYAN; REQUISITES TO FALL UNDER ITS

EXCLUSIVE JURISDICTION. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall
under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the
offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act),
(b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code (the law on bribery), (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), or
(e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the
335
offenses in items (a), (b), (c) and (e) is a public official or employee holding any of the positions enumerated in
paragraph a of Section 4; and (3) the offense committed is in relation to the office. ICASEH
2. ID.; ID.; ID.; WHAT DETERMINES THE SANDIGANBAYAN'S JURISDICTION IS THE OFFICIAL
POSITION OR RANK OF THE OFFENDER. Considering that herein petitioner and intervenors are being
charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing
provision on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This
paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed
by the public officials and employees mentioned in subsection a of [Section 4, R.A. 8249] in relation to their
office." The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was
committed in relation to the accused's official functions. Thus, under said paragraph b, what determines the
Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those
public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b
and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer
as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply
restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public
officer as a requisite to determine the jurisdiction of the Sandiganbayan.
3. CRIMINAL LAW; EX POST FACTO LAW; DEFINED; REPUBLIC ACT 8249 NOT AN EX POST
FACTO LAW. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v.
Bull, an ex post facto law is one (a) which makes an act done criminal before the passing of the law and
which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it
greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than
the law annexed to the crime when it was committed, (d) which alters the legal rules of evidence and receives
less or different testimony than the law required at the time of the commission of the offense in order to convict
the defendant, (e) every law which, in relation to the offense or its consequences, alters the situation of a person
to his disadvantage. This Court added two more to the list, namely: (f) that which assumes to regulate civil
rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful;
(g) deprives a person accused of crime of some lawful protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a proclamation of amnesty. Ex post facto law, generally,
prohibits retrospectively of penal laws. R.A. 8249 is not a penal law. It is a substantive law on jurisdiction
which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and
establish penalties for their violations; or those that define crimes, treat of their nature and provide for their
punishment. R.A. 7975, which amended P.D. 1606as regards the Sandiganbayan's jurisdiction, its mode of
appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural
statue, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly
administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as
unconstitutional.
4. REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHT TO APPEAL IS NOT A NATURAL RIGHT BUT
STATUTORY IN NATURE THAT CAN BE REGULATED BY LAW. Petitioner's and intervenors'
contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the
enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times
considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The
mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post
facto laws. R.A. 8249pertains only to matters of procedure, and being merely an amendatory statute it does not
partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within
the prohibition. Moreover, the law did not alter the rules of evidence or the mode of trial. It has been ruled that
adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. In any
case, R.A. 8249 has preserved the accused's right appeal to the Supreme Court to review questions of law. On
the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if
the presumption of innocence has been convincingly overcome. ESTDIA
336
5. ID.; SANDIGANBAYAN; JURISDICTION; DEFINED; SECTION 4 OF REPUBLIC ACT
8249 REQUIRES THAT THE OFFENSE CHARGED MUST BE COMMITTED BY THE OFFENDER IN
RELATION TO HIS OFFICE IN ORDER FOR THE SANDIGANBAYAN TO HAVE JURISDICTION
OVER IT. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition
must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence
the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or
information, and not by the evidence presented by the parties at the trial. As stated earlier, the multiple murder
charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires
that the offense charged must be committed by the offender in relation to his office in order for the
Sandiganbayan to have jurisdiction over it. This jurisdictional requirement is in accordance with Section 5,
Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over
criminal cases committed by public officers and employees, including those in government-owned or controlled
corporations, "in relation to their office as may be determined by law." This constitutional mandate was
reiterated in the new [1987] Constitution when it declared in Section 4 thereof that the Sandiganbayan "shall
continue to function and exercise its jurisdiction as now or hereafter may be provided by law."

6. ID.; ID.; ID.; MERE ALLEGATION IN THE INFORMATION THAT THE OFFENSE WAS
COMMITTED BY THE ACCUSED PUBLIC OFFICER IN RELATION TO HIS OFFICE IS NOT
SUFFICIENT TO FALL UNDER THE JURISDICTION OF SANDIGANBAYAN. The stringent
requirement that the charge be set forth with such particularity as will reasonably indicate the exact offense
which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We
believe that the mere allegation in the amended information that the offense was committed by the accused
public officer in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not a factual
averment that would show the close intimacy between the offense charged and the discharge of the accused's
official duties. In People vs. Magallanes, where the jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled: "It is an elementary rule that jurisdiction is determined by the allegations
in the complaint or information and not by the result of evidence after trial. "In (People vs. Montejo (108 Phil.
613 [1960]), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has
organized groups of police patrol and civilian commandoes consisting of regular policemen and . . . special
policemen appointed and provided by him with pistols and high power guns and then established a camp . . . at
Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed,
entertained criminal complaints and conducted the corresponding investigations as well as assumed the
authority to arrest and detain person without due process of law and without bringing them to the proper court,
and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders
his co-defendants arrested and maltreated Awalin Tebag who died in consequence thereof. We held that the
offense charged was committed in relation to the office of the accused because it was perpetrated while they
were in the performance, though improper or irregular of their official functions and would not have been
committed had they not held their office, besides, the accused had no personal motive in committing the crime
thus, there was an intimate connection between the offense and the office of the accused. "Unlike
in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the
accused arrested and investigated the victims and then killed the latter in the course of the investigation. The
informations merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00
abducted, kidnapped and detained the two victims, and failing in their common purpose, they spot and killed the
said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the
evidence presented by the prosecution at the trial." In the aforecited case of People vs. Montejo, it is noteworthy
that the phrase committed in relation to public office does not appear in the information, which only signifies
that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the
specific factual allegations in the information that would indicate the close intimacy between the discharge of
the accused's official duties and the commission of the offense charged, in order to qualify the crime as having
been committed in relation to public office. Consequently, for failure to show in the amended informations that
337
the charge of murder was intimately connected with the discharge of official functions of the accused PNP
officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court, not the Sandiganbayan.

DECISION

MARTINEZ, J p:

The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the
jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus.
Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to
prevent theSandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 (for multiple
murder) against them on the ground of lack of jurisdiction. LLphil
The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong
Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in
Metro Manila, were slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery
and Intelligence Task Group (ABRITG) headed by Chief Superintendent Jewel Canson of the Philippine
National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command
(TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime
Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo
M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the
Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at
dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong
Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators
headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This
panel later absolved from any criminal liability all the PNP officers and personnel allegedly involved in the
May 18, 1995 incident, with a finding that the said incident was a legitimate police operation. 1
However, a review board led by Overall Deputy Ombudsman Francisco Villa modified the Blancaflor panel's
finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including
herein petitioner and intervenors. This recommendation was approved by the Ombudsman, except for the
withdrawal of the charges against Chief Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11)
informations for murder 2 before the Sandiganbayan'sSecond Division, while intervenors Romeo Acop and
Francisco Zubia, Jr. were among those charged in the same informations as accessories after-the-fact.
Upon motion by all the accused in the 11 informations, 3 the Sandiganbayan allowed them to file a motion for
reconsideration of the Ombudsman's action. 4
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven
(11) amended informations 5 before the Sandiganbayan, wherein petitioner was charged only as an accessory,
together with Romeo Acop and Francisco Zubia, Jr. and others. One of the accused 6 was dropped from the
case.
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan,
asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court
338
pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They contend that the said law limited
the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government
officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier
General) or higher. The highest ranking principal accused in the amended informations has the rank of only a
Chief Inspector, and none has the equivalent of at least SG 27. cda
Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou,
with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena
dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the
Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the
principal accused has the rank of Chief Superintendent or higher. prLL
On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases
should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused.
While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction
cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No.
1094 11 (sponsored by Representatives Edcel C. Lagman and Neptali M. Gonzales II, respectively), as well as
Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced in Congress,
defining/expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to
amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal
accused" in Section 2 (paragraphs a and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the
Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for
reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996."
On the same day, 15 the Sandiganbayan issued an ADDENDUM to its March 5, 1997 Resolution, the pertinent
portion of which reads:
"After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it,
but before Justice de Leon, Jr. rendered his concurring and dissenting opinion, the legislature
enacted Republic Act 8249 and the President of the Philippines approved it on February 5,
1997. Considering the pertinent provisions of the new law, Justices Lagman and
Demetriou are now in favor of granting, as they are now granting, the Special
Prosecutor's motion for reconsideration. Justice de Leon has already done so in his
concurring and dissenting opinion.

xxx xxx xxx

"Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson,and that
trial has not yet begun in all these cases in fact, no order of arrest has been issued this
court has competence to take cognizance of these cases.
"To recapitulate, the net result of all the foregoing is that by the vote of 3 to 2, the court
admitted the Amended Informations in these cases and by the unanimous vote of 4 with 1
neither concurring nor dissenting, retained jurisdiction to try and decide the
cases." 16 [Emphasis supplied]

339
Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which
provides that the said law "shall apply to all cases pending in any court over which trial has not begun as of the
approval hereof." Petitioner argues that:
"a) The questioned provisions of the statute were introduced by the authors thereof in bad faith
as it was made to precisely suit the situation in which petitioner's cases were in at
the Sandiganbayan by restoring jurisdiction thereover to it, thereby violating his right to
procedural due process and the equal protection clause of the Constitution. Further, from the
way the Sandiganbayan has footdragged for nine (9) months the resolution of a pending
incident involving the transfer of the cases to the Regional Trial Court, the passage of the law
may have been timed to overtake such resolution to render the issue therein moot, and frustrate
the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975).
"b) Retroactive application of the law is plain from the fact that it was again made to suit the
peculiar circumstances in which petitioner's cases were under, namely, that trial had not yet
commenced, as provided in Section 7, to make certain that those cases will no longer be
remanded to the Quezon City Regional Trial Court, as theSandiganbayan alone should try
them, thus making it an ex post facto legislation and a denial of the right of petitioner as an
accused in Criminal Case Nos. 23047-23057 to procedural due process.
"c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in
Sections 4 and 7 which actually expands rather than defines the oldSandiganbayan law (RA
7975), thereby violating the one-title one-subject requirement for the passage of statutes
under Section 26(1), Article VI of the Constitution." 17
For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No.
8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of
Sections 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute
intended to apply specifically to the accused in the Kuratong Baleleng case pending before
the Sandiganbayan." 18 They further argued that if their case is tried before theSandiganbayan their right to
procedural due process would be violated as they could no longer avail of the two-tiered appeal to
the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor General filed separate pleadings in support of the
constitutionality of the challenged provisions of the law in question and praying that both the petition and the
petition-in-intervention be dismissed.
This Court then issued a Resolution 19 requiring the parties to file simultaneously within
a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether
the subject amended informations filed in Criminal Cases Nos. 23047-23057 sufficiently allege the commission
by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to
bring the said cases within the exclusive original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required
supplemental memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality, and to justify its
nullification there must be a clear and unequivocal breach ofthe Constitution, not a doubtful and argumentative
one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret
to say, was not convincingly discharged in the present case.
The creation of the Sandiganbayan was mandated in Section 5, Article XIII of the 1973 Constitution, which
provides:

340
 "SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan,
which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices
and such other offenses committed by public officers and employees including those in
government-owned or controlled corporations, in relation to their office as may be determined
by law."
The said special court is retained in the new (1987) Constitution under the following provision in Article XI,
Section 4:
"Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function
and exercise its jurisdiction as now or hereafter may be provided by law."
Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter,
the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606, 22 Section 20
of Batas Pambansa Blg. 129, 23 P.D. No. 1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No.
8249. 27Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has
jurisdiction over the following cases:
"SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended
to read as follows:
"SEC. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in
all cases involving:
"a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade '27' and higher, of theCompensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine Army and air force colonels, naval captains, and all officers of
higher rank;
(e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of senior superintendent
or higher; cdphil
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
341
 (2) Members of Congress or officials thereof classified as Grade '27' and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to the
provisions of the Constitution;
(5) All other national and local officials classified as Grade '27' or higher under
the Compensation and Position Classification Act of 1989.
"b. Other offenses or felonies whether simple or complexed with other crimes committed
by the public officials and employees mentioned in Subsection a of this section in relation
to their office.
"c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A, issued in 1986.
"In cases where none of the accused are occupying positions corresponding to salary Grade
'27' or higher, as prescribed in the said Republic Act 6758, or military and PNP officers
mentioned above, exclusive original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial
court, as the case may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129, as amended.
"The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments,
resolutions or orders of regional trial courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of
the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary
writs and processes in aid of its appellate jurisdiction and over petitions of similar nature,
including quo warranto, arising or that may arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction
over these petitions shall not be exclusive of the Supreme Court.
"The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that
the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions
for review to the Court of Appeals, shall apply to appeals and petitions for review filed with
the Sandiganbayan. In all cases elevated to theSandiganbayan and from the Sandiganbayan to
the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos.
1, 2, 14 and 14-A, issued in 1986.

"In case private individuals are charged as co-principals, accomplices or accessories with the
public officers or employees, including those employed in government-owned or controlled
corporations, they shall be tried jointly with said public officers and employees in the proper
courts which shall exercise exclusive jurisdiction over them.
xxx xxx xxx." (Emphasis supplied)
Section 7 of R.A. No. 8249 states:
"SEC. 7. Transitory provision. This act shall apply to all cases pending in any court over
which trial has not begun as of the approval hereof." (Emphasis supplied)
342
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:
"SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended] is hereby
further amended to read as follows:
"SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in
all cases involving:
"a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the principal accused are officials occupying
the following positions in the government, whether in a permanent, acting or interim capacity,
at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade '27' and higher, of theCompensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine Army and air force colonels, naval captains, and all officers of
higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
(2) Members of Congress or officials thereof classified as Grade '27' and up under
the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to the
provisions of the Constitution;
(5) All other national and local officials classified as Grade '27' or higher under
the Compensation and Position Classification Act of 1989.
"b. Other offenses or felonies committed by the public officials and employees mentioned in
Subsection a of this section in relation to their office.
"c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2,
14 and 14-A.
"In cases where none of the principal accused are occupying positions corresponding to salary
Grade '27' or higher, as prescribed in the said Republic Act 6758, or PNP officers occupying
343
 the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof
shall be vested in the proper regional trial court, metropolitan trial court, municipal trial
court, and municipal circuit trial court, as the case may be, pursuant to their respective
jurisdictions as provided in Batas Pambansa Blg. 129.
"The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final
judgments, resolutions or orders of regular courts where all the accused are occupying
positions lower than grade '27,' or not otherwise covered by the preceding enumeration.
xxx xxx xxx
"In case private individuals are charged as co-principals, accomplices or accessories with the
public officers or employees, including those employed in government-owned or controlled
corporations, they shall be tried jointly with said public officers and employees in the proper
courts which shall have exclusive jurisdiction over them.
xxx xxx xxx." (Emphasis supplied)
Section 7 of R.A. No. 7975 reads:
"SEC. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the
Sandiganbayan shall be referred to the proper courts."
Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in
the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word
"principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and
intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction
over the subject criminal cases since none of the principalaccused under the amended information has the rank
of Superintendent 28 or higher. On the other hand, the Office of the Ombudsman, through the Special
Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases, 29 contends
that the Sandiganbayan has jurisdiction pursuant toR.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction
of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A.
3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten
wealth), (c)Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on
bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31or (e) other
offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in
items (a), (b), (c) and (e) is a public official or employee 32 holding any of the positions enumerated in
paragraph a of Section 4; and (3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable
under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense
is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other
offenses or felonies whether simple or complexed with other crimes committed by the public officials and
employees mentioned in subsection a of [Section 4, R.A. 8249] in relation to their office." The phrase "other
offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the
accused's official functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is
the official position or rank of the offender that is, whether he is one of those public officers or employees
enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4
do not make any reference to the criminal participation of the accused public officer as to whether he is
charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the
original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a
requisite to determine the jurisdiction of theSandiganbayan.

344
Petitioner and intervenors' posture that Sections 4 and 7 of R.A. 8249 violate their right to equal protection of
the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in
the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing
argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the
highest officer of the co-equal executive department as unconstitutional. Every classification made by law is
presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness. 34
It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not
violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary
when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equally to all members of the same class. 35
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and
reasonableness of the questioned provisions. The classification between those pending cases involving the
concerned public officials whose trial has not yet commenced and whose cases could have been affected by the
amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already
started as of the approval of the law, rests on substantial distinction that makes real differences. 36 In the first
instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted
their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress
to define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably anticipated
that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a
remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4
and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of
Section 4 provides that it shall apply to "all cases involving" certain public officials and, under the transitory
provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the
law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only
cover cases which are in the Sandiganbayan but also in "any court." It just happened that the Kuratong
Balelengcases are one of those affected by the law. Moreover, those cases where trial had already begun are not
affected by the transitory provision under Section 7 of the new law (R.A. 8249).

In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad
faith on the part of a Senator and two Justices of theSandiganbayan 38 for their participation in the passage of
the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those
officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee
headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have
been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in
paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249. 39 R.A. 8249,
while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and
was separately approved by the Senate and House of Representatives and, finally, by the President of the
Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committee
hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence
and participation in the legislative hearings was deemed necessary by Congress since the matter before the
committee involves the graft court of which one is the head of the Sandiganbayan and the other a member
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thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite
persons to appear before it whenever it decides to conduct inquiries in aid of legislation. 40
Petitioner and intervenors further argued that the retroactive application of R.A. 8249 to the Kuratong
Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to procedural due process
as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex post
facto law is one
(a) which makes an act done criminal before the passing of the law and which was innocent
when committed, and punishes such action; or
(b) which aggravates a crime or makes it greater than when it was committed; or
(c) which changes the punishment and inflicts a greater punishment than the law annexed to the
crime when it was committed;
(d) which alters the legal rules of evidence and receives less or different testimony than the law
required at the time of the commission of the offense in order to convict the
defendant; 43
(e) Every law which, in relation to the offense or its consequences, alters the situation of a
person to his disadvantage. 44
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty
or deprivation of a right which when done was lawful;
(g) deprives a person accused of crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal, or a proclamation of
amnesty. 45
Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not a penal law. It is a
substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature
which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat of
their nature, and provide for their punishment. 48 R.A. 7975, which amended P.D. 1606 as regards
the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the
Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which
courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the retroactive
application of R.A. 8249 cannot be challenged as unconstitutional. cdpr
Petitioner's and intervenors' contention that their right to a two-tiered appeal which they acquired under R.A.
7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been
rejected by the court several times 50 considering that the right to appeal is not a natural right but statutory in
nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not
included in the prohibition against ex post facto laws. 51 R.A. 8249 pertains only to matters of procedure, and
being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a
penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter the rules of
evidence or the mode of trial. 53 It has been ruled that adjective statutes may be made applicable to actions
pending and unresolved at the time of their passage. 54
In any case, R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of
law. 55 On the removal of the intermediate review of facts, the Supreme Court still has the power of review to
determine if the presumption of innocence has been convincingly overcome. 56

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Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution.
Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction
when what it allegedly does is to "expand" its jurisdiction. The expansion in the jurisdiction of
the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law
because such is the necessary consequence of the amendments. The requirement that every bill must only have
one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in this case, to include
subjects related to the general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted
and should be given a practical rather than a technical construction. There is here sufficient compliance with
such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of
the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane
to that general subject. 59 The Congress, in employing the word "define" in the title of the law, acted within its
powers since Section 2, Article VIII of the Constitution itself empowers the legislative body to
"define, prescribe, and apportion the jurisdiction of various courts." 60
There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the
retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine
whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has
jurisdiction over the multiple murder case against herein petitioner and intervenors.
The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear
in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary
rule that the jurisdiction of a court is determined by the allegations in the complaint or information, 61 and not
by the evidence presented by the parties at the trial. 62
As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph
b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to
his office in order for the Sandiganbayan to have jurisdiction over it. 63 This jurisdictional requirement is in
accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall
have jurisdiction over criminal cases committed by public officers and employees, including those in
government-owned or controlled corporations "in relation to their office as may be determined by law." This
constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that
the Sandiganbayan "shall continue to function and exercise its jurisdiction as now or hereafter may be
provided by law."
The remaining question to be resolved then is whether the offense of multiple murder was committed in
relation to the office of the accused PNP officers.
In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if it
(the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the
performance of his official functions. 65 This intimate relation between the offense charged and the discharge
of official duties "must be alleged in the information." 66
As to how the offense charged be stated in the information, Section 9 Rule 110 of the Revised Rules of Court
mandates:
"SEC. 9. Cause of accusation. The acts or omissions complained of as constituting the
offense must be stated in ordinary and concise language without repetition, not necessarily
in the terms of the statute defining the offense, but in such form as is sufficient to enable a
person of common understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment." (Emphasis supplied)
As early as 1954, we pronounced that "the factor that characterizes the charge is the actual recital of the
facts." 67 "The real nature of the criminal charge is determined not from the caption or preamble of the

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information nor from the specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the complaint or information." 68

The noble object of written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69
"
The object of this written accusations was First. To furnish the accused with such a
description of the charge against him as will enable him to make his defense; and second, to
avail himself of his conviction or acquittal for protection against a further prosecution for the
same cause; and third, to inform the court of the facts alleged, so that it may decide whether
they are sufficient in law to support a conviction, if one should be had. In order that this
requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is
made up of certain acts and intent; these must be set forth in the complaint with
reasonable particularity oftime, place, names (plaintiff and defendant), and circumstances.
In short, the complaint must contain a specific allegation of every fact and circumstance
necessary to constitute the crime charged." (Emphasis supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him, as "he is presumed
to have no independent knowledge of the facts that constitute the offense." 70
Applying these legal principles and doctrines to the present case, we find the amended informations for murder
against herein petitioner and intervenors wanting ofspecific factual averments to show the intimate
relation/connection between the offense charged and the discharge of official function of the offenders.
In the present case, one of the eleven (11) amended informations 71 for murder reads:
"AMENDED INFORMATION
"The undersigned Special Prosecution Officer III, Office of the Ombudsman, hereby accuses,
CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR
INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P.
ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O.
AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF
SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O.
MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO,
SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY
NUAS, SPO3 CICERO S. BACOLOD, PO2 NORBERTO LASAGA, PO2 LEONARDO
GLORIA and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and
penalized under Article 248 of the Revised Penal Code committed as follows:
"That on or about May 18, 1995, in Mariano Marcos Avenue, Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the accused CHIEF INSP. MICHAEL RAY
AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T.
ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4
ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R.
JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG and SPO1
OSMUNDO B. CARINO, all taking advantage of their public and official positions as
officers and members of the Philippine National Police and committing the acts herein
alleged in relation to their public office, conspiring, with intent to kill and using firearms,
with treachery, evident premeditation and taking advantage of their superior strengths, did then
and there willfully, unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon

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 the latter mortal wounds which caused his instantaneous death to the damage and prejudice of
the heirs of the said victim.
"That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP,
CHIEF SUPT. PANFILO M . LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA,
JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP.
GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S.
BACOLOD, PO2 ALEJANDRO G. LIWANAG, committing the acts in relation to office as
officers and members of the Philippine National Police, are charged herein as accessories
after-the-fact for concealing the crime herein above alleged by, among others, falsely
representing that there were no arrests made during the raid conducted by the accused
herein at Superville Subdivision, Paraaque, Metro Manila, on or about the early dawn of
May 18, 1995.
"CONTRARY TO LAW"
While the above-quoted information states that the above-named principal accused committed the crime of
murder "in relation to their public office," there is, however,no specific allegation of facts that the shooting of
the victim by the said principal accused was intimately related to the discharge of their official duties as police
officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the
victim and then killed the latter while in their custody.
Even the allegations concerning the criminal participation of herein petitioner and intervenors as among the
accessories after-the-fact, the amended information is vague on this. It is alleged therein that the said
accessories concealed "the crime herein-above alleged by, among others, falsely representing that there were no
arrests made during the raid conducted by the accused herein at Superville Subdivision, Paraaque, Metro
Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during
the raid conducted by the accused" surprises the reader. There is no indication in the amended information
that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were
allegedly conducted "at Superville Subdivision, Paraaque, Metro Manila" but, as alleged in the immediately
preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred
"in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in two places far
away from each other is puzzling. Again, while there is the allegation in the amended information that the said
accessories committed the offense "in relation to office as officers and members of the (PNP)," we, however, do
not see the intimate connection between the offense charged and the accused's official functions, which, as
earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. prcd
The stringent requirement that the charge be set forth with such particularity as will reasonably indicate the
exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not
satisfied. We believe that the mere allegation in the amended information that the offense was committed by the
accused public officer "in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not
a factual averment that would show the close intimacy between the offense charged and the discharge of the
accused's official duties.
In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and
the Sandiganbayan was at issue, we ruled:
"It is an elementary rule that jurisdiction is determined by the allegations in the complaint or
information, and not by the result of evidence after trial.
"In (People vs.) Montejo (108 Phil. 613 [1960]), where the amended information alleged:
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police
patrol and civilian commandoes consisting of regular policemen and . . . special
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 policemen, appointed and provided by him with pistols and high power guns and then
established a camp . . . at Tipo-tipo, which is under his command . . . supervision and
control, where his co-defendants were stationed, entertained criminal complaints and
conducted the corresponding investigations, as well as assumed the authority to arrest
and detain persons without due process of law and without bringing them to the proper
court, and that in line with this set-up established by said Mayor of Basilan City as
such, and acting upon his orders, his co-defendants arrested and maltreated Awalin
Tebag, who died in consequence thereof.
we held that the offense charged was committed in relation to the office of the accused because
it was perpetrated while they were in the performance, though improper or irregular, of their
official functions and would not have been committed had they not held their office; besides,
the accused had no personal motive in committing the crime; thus, there was an intimate
connection between the offense and the office of the accused.
"Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and 15563 in the court
below do not indicate that the accused arrested and investigated the victims and then killed the
latter in the course of the investigation. The informations merely allege that the accused, for the
purpose of extracting or extorting the sum of P353,000.00, abducted, kidnapped, and detained
the two victims, and failing in their common purpose, they shot and killed the said victims. For
the purpose of determining jurisdiction, it is these allegations that shall control, and not
the evidence presented by the prosecution at the trial."
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase "committed in relation to public
office" does not appear in the information, which only signifies that the said phrase is not what determines the
jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information
that would indicate the close intimacy between the discharge of the accused's official duties and the commission
of the offense charged, in order to qualify the crime as having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder was intimately
connected with the discharge of official functions of the accused PNP officers, the offense charged in the
subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional
Trial Court, 73 not the Sandiganbayan.

WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to
the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to
transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City
which has exclusive original jurisdiction over said cases. LLphil
SO ORDERED.
||| (Lacson v. Executive Secretary, G.R. No. 128096, [January 20, 1999], 361 PHIL 251-284)

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