SECOND DIVISION [G.R. No. 127383. August 18, 2005.

] THE CITY OF DAVAO, CITY TREASURER AND THE CITY ASSESSOR OF DAVAO CITY, petitioners, vs. THE REGIONAL TRIAL COURT, BRANCH XII, DAVAO CITY AND THE GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), respondents. The City Legal Office for petitioners. Legal Department (GSIS) for respondents. SYLLABUS 1. POLITICAL LAW; ADMINISTRATIVE LAW; PRESIDENTIAL DECREE NO. 1981; EXPRESSLY STATING THAT THE TAX-EXEMPT STATUS OF GSIS REMAINED IN PLACE. Notably, P.D. No. 1931 was also an exercise of legislative powers then accorded to President Marcos by virtue of Amendment No. 6 to the 1973 Constitution. Whether he was aware of the effect of P.D. No. 1931 on the GSIS's tax-exempt status or the ramifications of the decree thereon is unknown; but apparently, he immediately reconsidered the withdrawal of the exemptions on the GSIS. Thus, P.D. No. 1981 was enacted, expressly stating that the tax-exempt status of the GSIS under Section 33 of P.D. No. 1146 remained in place, notwithstanding the passage of P.D. No. 1931. However, P.D. No. 1981 did not stop there, serving merely as it should to restore the previous exemptions on the GSIS. It also attempted to proscribe future attempts to alter the tax-exempt status of the GSIS by imposing unorthodox conditions for its future repeal. Thus, as intimated earlier, a second paragraph was added to Section 33, containing the restrictions relied upon by the RTC and presently invoked by the GSIS before this Court. 2. ID.; LEGISLATIVE DEPARTMENT; ONLY THE CONSTITUTION MAY OPERATE TO PRECLUDE OR PLACE RESTRICTIONS ON THE AMENDMENT OR REPEAL OF LAWS. The second paragraph of Section 33 of P.D. No. 1146, as amended, effectively imposes restrictions on the competency of the Congress to enact future legislation on the taxability of the GSIS. This places an undue restraint on the plenary power of the legislature to amend or repeal laws, especially considering that it is a lawmaker's act that imposes such burden. Only the Constitution may operate to preclude or place restrictions on the amendment or repeal of laws. Constitutional dicta is of higher order than legislative statutes, and the latter should always yield to the former in cases of irreconcilable conflict. aATCDI 3. ID.; ID.; IMPLIED SUBSTANTIVE LIMITATIONS ON THE LEGISLATIVE POWERS IS THE PROHIBITION AGAINST THE PASSAGE OF IRREPARABLE LAWS. It is a basic precept that among the implied substantive limitations on the legislative powers is the prohibition against the passage of irrepealable laws. Irrepealable laws deprive succeeding legislatures of the fundamental best senses carte blanche in crafting laws

appropriate to the operative milieu. Their allowance promotes an unhealthy stasis in the legislative front and dissuades dynamic democratic impetus that may be responsive to the times. As Senior Associate Justice Reynato S. Puno once observed, "[t]o be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change." Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience. 4. ID.; ID.; RATIONALE FOR PROHIBITING IRREPARABLE LAWS APPLIES IN PROHIBITING RESTRAINTS ON FUTURE AMENDATORY LAWS. It might be argued that Section 33 of P.D. No. 1146, as amended, does not preclude the repeal of the tax-exempt status of GSIS, but merely imposes conditions for such to validly occur. Yet these conditions, if honored, have the precise effect of limiting the powers of Congress. Thus, the same rationale for prohibiting irrepealable laws applies in prohibiting restraints on future amendatory laws. President Marcos, who exercised his legislative powers in amending P.D. No. 1146, could not have demanded obeisance from future legislators by imposing restrictions on their ability to legislate amendments or repeals. The concerns that may have militated his enactment of these restrictions need not necessarily be shared by subsequent Congresses. cISDHE 5. ID.; ID.; IF CONGRESS HAS THE INHERENT POWER TO ABROGATE THE GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) ITSELF, THEN IT NECESSARILY HAS THE ABILITY TO INFLICT LESS DETRIMENTAL BURDENS. We do not mean to trivialize the need to ensure the solvency of the GSIS fund, a concern that has seen legislative expression, even with the most recently enacted Government Service Insurance System Act of 1997. Yet at the same time, we recognize that Congress has the putative authority, through valid legislation, to diminish such fund, or even abolish the GSIS itself if it so desires. The GSIS may provide vital services and security to employees of the civil service, yet it is not a sacred cow that is beyond abolition by Congress if, for example, more innovative methods are devised to ensure stable pension funds for government employees. If Congress has the inherent power to abrogate the GSIS itself, then it necessarily has the ability to inflict less detrimental burdens, such as abolishing its tax-exempt status. If there could be legal authority proscribing the Congress from enacting such legislation, such should be sourced from the Constitution itself, and not from antecedent statutes which were themselves enacted by legislative power. 6. ID.; ID.; LEGISLATURE CANNOT BIND A FUTURE LEGISLATURE TO A PARTICULAR MODE OF REPEAL. The Court's position is aligned with entrenched norms of statutory construction. In Duarte v. Dade, the Court cited with approval Lewis'

Southerland on Statutory Construction, which states: A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. 7. ID.; CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; THE STATE IS MANDATED TO ENSURE THE AUTONOMY OF LOCAL GOVERNMENTS. Also worthy of note is that the Constitution itself promotes the principles of local autonomy as embodied in the Local Government Code. The State is mandated to ensure the autonomy of local governments, and local governments are empowered to levy taxes, fees and charges that accrue exclusively to them, subject to congressional guidelines and limitations. The principle of local autonomy is no mere passing dalliance but a constitutionally enshrined precept that deserves respect and appropriate enforcement by this Court. 8. ID.; STATUTORY CONSTRUCTION; STATUTORY INTERPRETATIONS OF EXECUTIVE BODIES DO NOT HOLD DECISIVE SWAY UPON THE JUDICIARY. We are aware that this stance runs contrary to that which was adopted by the Secretary of Justice in his Opinion dated 22 July 1993, as well as the memorandum from the Office of the President dated 14 February 1995, expressing the same opinion. However, statutory interpretations of these executive bodies do not hold decisive sway upon the judiciary but are merely persuasive. These issuances cannot derogate from the binding precept that one legislature cannot enact irrepealable legislation or limit or restrict its own power or the power of its successors as to the repeal of statutes. The act of one legislature is not binding upon and does not tie the hands of future legislatures. ACIDTE DECISION TINGA, J p: A Davao City Regional Trial Court (RTC) upheld the tax-exempt status of the Government Service Insurance System (GSIS) for the years 1992 to 1994 in contravention of the mandate under the Local Government Code of 1992, 1 the precedent set by this Court in Mactan-Cebu International Airport Authority v. Hon. Marcos, 2 and the public policy on local autonomy enshrined in the Constitution. 3 The matter was elevated to this Court directly from the trial court on a pure question of law. 4 The facts are uncontroverted.

On 8 April 1994, the GSIS Davao City branch office received a Notice of Public Auction scheduling the public bidding of GSIS properties located in Matina and Ulas, Davao City for non-payment of realty taxes for the years 1992 to 1994 totaling Two Hundred Ninety Five Thousand Seven Hundred Twenty One Pesos and Sixty One Centavos (P295,721.61). 5 The auction was subsequently reset by virtue of a deadline extension allowed by Davao City for the payment of delinquent real property taxes. 6 On 28 July 1994, the GSIS received Warrants of Levy and Notices of Levy on three parcels of land owned by the GSIS. Another Notice of Public Auction was received by the GSIS on 29 August 1994, setting the date of auction sale for 20 September 1994. On 13 September 1994, the GSIS filed a Petition for Certiorari, Prohibition, Mandamus And/Or Declaratory Relief with the RTC of Davao City. It also sought the issuance of a temporary restraining order. The case was raffled to Branch 12, presided by Judge Maximo Magno Libre. On 13 September 1994, the RTC issued a temporary restraining order for a period of twenty (20) days, 7 effectively enjoining the auction sale scheduled seven days later. Following exchange of arguments, the RTC issued an Order dated 3 April 1995 issuing a writ of preliminary injunction effective for the duration of the suit. 8 At the pre-trial, it was agreed that the sole issue for resolution was purely a question of law, that is, whether Sections 234 and 534 of the Local Government Code, which have withdrawn real property tax exemptions of government owned and controlled corporations (GOCCs), have also withdrawn from the GSIS its right to be exempted from payment of the realty taxes sought to be levied by Davao City. 9 The parties submitted their respective memoranda. On 28 May 1996, the RTC rendered the Decision 10 now assailed before this Court. It concluded that notwithstanding the enactment of the local Government Code, the GSIS retained its exemption from all taxes, including real estate taxes. The RTC cited Section 33 of Presidential Decree (P.D.) No. 1146, the Revised Government Service Insurance Act of 1977, as amended by P.D. No. 1981, which mandated such exemption. The RTC conceded that the tax exempting statute, P.D. No. 1146, was enacted prior to the Local Government Code. However, it noted that the earlier law had prescribed two conditions in order that the tax exemption provided therein could be withdrawn by future enactments, namely: (1) that Section 33 be expressly and categorically repealed by law; and (2) that a provision be enacted to substitute the declared policy of exemption from any and all taxes as an essential factor for the solvency of the GSIS fund. 11 The RTC concluded that both conditions had not been satisfied by the Local Government Code. The RTC likewise accorded weight to Legal Opinion No. 165 of the Secretary of Justice, dated 16 December 1996 concluding that Section 33 was not repealed by the Local Government Code, and a memorandum emanating from the Office of the President dated 14 February 1995 expressing the same opinion. 12

The dispositive portion of the assailed Decision reads: Now then, in light of the foregoing observation, the court perceives, that the cause of action asseverated by petitioner in its petition has been well established by law and jurisprudence, and therefore the following relief should be granted: a) The tax exemption privilege of petitioner should be upheld and continued and that the warrants of levy and notices of levy issued by the respondent Treasurer is hereby voided and declared of no effect; b) Let a writ of prohibition be issued restraining the City Treasurer from proceeding with the auction sale of the subject properties, as well as the respondents Register of Deeds from annotating the warrants/notices of levy on the certificate of titles of petitioners real properties subject of this suit; and c) Compelling the City Assessor of Davao City to include the properties of petitioner in the list of properties exempt from payment of realty tax and if the warrants and levies issued by the City Treasurer had been annotated in the memorandum of encumbrance on the certificates of title of petitioner's properties, to cancel such annotation so that the certificates of titles of petitioners will be free from such liens and encumbrances. SO ORDERED. 13 Petitioners' Motion for Reconsideration was denied by the RTC in an Order dated 30 October 1996, hence the present petition. Petitioners argue that the exemption granted in Section 33 of P.D. No. 1146, as amended, was effectively withdrawn upon the enactment of the Local Government Code, particularly Sections 193 and 294 thereof. These provisions made the GSIS, along with all other GOCCs, subject to realty taxes. Petitioners point out that under Section 534 (f) of the Local Government Code, even special laws, such as PD No. 1146, which are inconsistent with the Local Government Code, are repealed or modified accordingly. DIETcH On the other hand, GSIS contends, as the RTC held, that the requisites for repeal are laid down in Section 33 of P.D. No. 1146, as amended, namely that it be done expressly and categorically by law, and that a provision be enacted to substitute the declared policy of exemption from taxes as an essential factor for the solvency of the GSIS fund. It stresses that it had been exempt from taxation as far back as 1936, when its original charter was enacted through Commonwealth Act No. 186. 14 It asserts further that this Court had previously recognized the "extraordinary exemption" of GSIS in Testate Estate of Concordia T. Lim v. City of Manila, 15 and such exemption has similarly been affirmed by the Secretary of Justice and the Office of the President in the aforementioned issuances also cited by the RTC. 16

GSIS likewise notes that had it been the intention of the legislature to repeal Section 33 of P.D. No. 1146 through the Local Government Code, said law would have included the appropriate retraction in its repealing clause found in Section 534(f). However, said section, according to the GSIS, partakes the nature of a general repealing provision which is accorded less weight in light of the rule that implied repeals are not favored. Consequently with its position that it remains exempt from realty taxation, the GSIS argues that the Notices of Assessment, Warrants and Notices of Levy, Notices of Public Auction Sale and the Annotations of the Notice of Levy are void ab initio. TEAaDC A review of the relevant statutory provisions is in order. Presidential Decree No. 1146 was enacted in 1977 by President Marcos in the exercise of his legislative powers. Section 33, as originally enacted, read: Sec. 33. Exemption from tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the System shall be preserved and maintained at all times and that the contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the system and/or their employees. . . . Accordingly, notwithstanding any laws to the contrary, the System, its assets, revenues including the accruals thereto, and benefits paid, shall be exempt from all taxes. These exemptions shall continue unless expressly and specifically revoked and any assessment against the System as of the approval of this Act are hereby considered paid. As it stood then, Section 33 merely provided a general rule exempting the GSIS from all taxes. However, Section 33 of P.D. No. 1146 was amended in 1985 by President Marcos, again in the exercise of his legislative powers, through P.D. No. 1981. It was through this latter decree that a second paragraph was added to Section 33 delineating the requisites for repeal of the tax exemption enjoyed by the GSIS by incorporating the following: xxx xxx xxx

Moreover, these exemptions shall not be affected by subsequent laws to the contrary, such as the provisions of Presidential Decree No. 1931 and other similar laws that have been or will be enacted, unless this section is expressly and categorically repealed by law and a provision is enacted to substitute the declared policy of exemption from any and all taxes as an essential factor for the solvency of the fund. 17 It bears noting though, and it is perhaps key to understanding the necessity of the addendum provided under P.D. No. 1981, that a presidential decree enacted a year earlier, P.D. No. 1931, effectively withdrew all tax exemption privileges granted to GOCCs. 18 In fact, P.D. No. 1931 was specifically named in the afore-quoted

addendum as among those laws which, despite passage, would not affect the tax exempt status of GSIS. Section 1 of P.D. No. 1931 states: Sec. 1. The provisions of special or general law to the contrary notwithstanding, all exemptions from the payment of duties, taxes, fees, imposts and other charges heretofore granted in favor of government-owned or controlled corporations including their subsidiaries, are hereby withdrawn. There is no doubt that the GSIS which was established way back in 1937 is a GOCC, a fact that GSIS itself admits in its petition for certiorari before the RTC. 19 It thus clear that Section 1 of P.D. No. 1931 expressly withdrew those exemptions granted to the GSIS. Presidential Decree No. 1931 did allow the exemption to be restored in special cases through an application for restoration with the Secretary of Finance, but otherwise, the exemptions granted to the GSIS prior to the enactment of P.D. No. 1931 were withdrawn. Notably, P.D. No. 1931 was also an exercise of legislative powers then accorded to President Marcos by virtue of Amendment No. 6 to the 1973 Constitution. Whether he was aware of the effect of P.D. No. 1931 on the GSIS's tax-exempt status or the ramifications of the decree thereon is unknown; but apparently, he immediately reconsidered the withdrawal of the exemptions on the GSIS. Thus, P.D. No. 1981 was enacted, expressly stating that the tax-exempt status of the GSIS under Section 33 of P.D. No. 1146 remained in place, notwithstanding the passage of P.D. No. 1931. aSCHcA However, P.D. No. 1981 did not stop there, serving merely as it should to restore the previous exemptions on the GSIS. It also attempted to proscribe future attempts to alter the tax-exempt status of the GSIS by imposing unorthodox conditions for its future repeal. Thus, as intimated earlier, a second paragraph was added to Section 33, containing the restrictions relied upon by the RTC and presently invoked by the GSIS before this Court. These laws have to be weighed against the Local Government Code of 1992, a landmark law which implemented the constitutional aspirations for a more extensive breadth of local autonomy. The Court, in Mactan, was asked to consider the effect of the Local Government Code on the taxability by local governments of GOCCs such as the Mactan Cebu International Airport Authority (MCIAA). Particularly, MCIAA invoked Section 133(o) of the Local Government Code as the basis for its claimed exemption, the provision reading: SECTION 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: xxx xxx xxx

(o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and local government units. However, the Court, in ruling MCIAA non-exempt from realty taxes, considered that Section 133 qualified the exemption of the National Government, its agencies and instrumentalities from local taxation with the phrase "unless otherwise provided herein." The Court then considered the other relevant provisions of the Local Government Code, particularly the following: SECTION 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemption or incentives granted to, or enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. SECTION 232. Power to Levy Real Property Tax. A province or city or a municipality within the Metropolitan Manila area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvements not hereafter specifically exempted. SECTION 234. Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; (b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-profit or religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for religious charitable or educational purposes; (c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government-owned and controlled corporations engaged in the distribution of water and/or generation and transmission of electric power; (d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and (e) Machinery and equipment used for pollution control and environmental protection. Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or juridical, including all government-owned or controlled corporations are hereby withdrawn upon the effectivity of this Code. (Emphasis supplied.)

Evidently, Section 133 was not intended to be so absolute a prohibition on the power of LGUs to tax the National Government, its agencies and instrumentalities, as evidenced by these cited provisions which "otherwise provided." But what was the extent of the limitation under Section 133? This is how the Court, in a discussion of far-reaching consequence, defined the parameters in Mactan: The foregoing sections of the LGC speak of: (a) the limitations on the taxing powers of local government units and the exceptions to such limitations; and (b) the rule on tax exemptions and the exceptions thereto. The use of exceptions or provisos in these sections, as shown by the following clauses: (1) (2) (3) (4) "unless otherwise provided herein" in the opening paragraph of Section 133; "Unless otherwise provided in this Code" in Section 193; "not hereafter specifically exempted" in Section 232; and "Except as provided herein" in the last paragraph of Section 234

initially hampers a ready understanding of the sections. Note, too, that the aforementioned clause in Section 133 seems to be inaccurately worded. Instead of the clause "unless otherwise provided herein," with the "herein" to mean, of course, the section, it should have used the clause "unless otherwise provided in this Code." The former results in absurdity since the section itself enumerates what are beyond the taxing powers of local government units and, where exceptions were intended, the exceptions are explicitly indicated in the next. For instance, in item (a) which excepts income taxes "when levied on banks and other financial institutions;" item (d) which excepts "wharfage on wharves constructed and maintained by the local government unit concerned"; and item (1) which excepts taxes, fees and charges for the registration and issuance of licenses or permits for the driving of "tricycles." It may also be observed that within the body itself of the section, there are exceptions which can be found only in other parts of the LGC, but the section interchangeably uses therein the clause, "except as otherwise provided herein" as in items (c) and (i), or the clause "except as provided in this Code" in item (j). These clauses would be obviously unnecessary or mere surplusages if the opening clause of the section were "Unless otherwise provided herein." In any event, even if the latter is used, since under Section 232 local government units have the power to levy real property tax, except those exempted therefrom under Section 234, then Section 232 must be deemed to qualify Section 133. Thus, reading together Section 133, 232, and 234 of the LGC, we conclude that as a general rule, as laid down in Section 133, the taxing powers of local government units cannot extend to the levy of, inter alia, "taxes, fees and charges of any kind on the National Government, its agencies and instrumentalities, and local government units"; however, pursuant to Section 232, provinces, cities, and municipalities in the Metropolitan Manila Area may impose the real property tax except on, inter alia, "real

property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person," as provided in item (a) of the first paragraph of Section 234. As to tax exemption or incentives granted to or presently enjoyed by natural or juridical persons, including government-owned and controlled corporations, Section 193 of the LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC, except those granted to local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, and unless otherwise provided in the LGC. The latter proviso could refer to Section 234 which enumerates the properties exempt from real property tax. But the last paragraph of Section 234 further qualifies the retention of the exemption insofar as real property taxes are concerned by limiting the retention only to those enumerated therein; all others not included in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as to real property owned by the Republic of the Philippines or any of its political subdivisions covered by item (a) of the first paragraph of Section 234, the exemption is withdrawn if the beneficial use of such property has been granted to a taxable person for consideration or otherwise. Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC, exemptions from payment of real property taxes granted to natural or juridical persons, including government-owned or controlled corporations, except as provided in the said section, and the petitioner is, undoubtedly, a government-owned corporation, it necessarily follows that its exemption from such tax granted it in Section 14 of its Charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the petitioner can seek refuge under any of the exceptions provided in Section 234, but not under Section 133, as it now asserts, since, as shown above, the said section is qualified by Sections 232 and 234. 20 (Emphasis supplied.) This Court, in Mactan, acknowledged that under Section 133, instrumentalities were generally exempt from all forms of local government taxation, unless otherwise provided in the Code. On the other hand, Section 232 "otherwise provides" insofar as it allowed local government units to levy an ad valorem real property tax, irrespective of who owned the property. At the same time, the imposition of real property taxes under Section 232 is in turn qualified by the phrase "not hereinafter specifically exempted." The exemptions from real property taxes are enumerated in Section 234, which specifically states that only real properties owned "by the Republic of the Philippines or any of its political subdivisions" are exempted from the payment of the tax. Clearly, instrumentalities or GOCCs do not fall within the exceptions under Section 234. aIETCA Worth reckoning, however, is an essential difference between the situation of the MCIAA (and most other GOCCs, for that matter) and that of the GSIS. Unlike most

other GOCCs, there is a statutory provision Section 33 of P.D. No. 1146, as amended which imposes conditions on the subsequent withdrawal of the GSIS's tax exemptions. The RTC justified the affirmance of the tax exemptions based on the noncompliance by the Local Government Code with these conditionalities, and not by reason of a general proposition that GOCCs or instrumentalities remain exempt from local government taxation. Absent Section 33 of P.D. No. 1146, as amended, there would be no impediment in squarely applying the express provisions of Sections 193, 232 and 234 of the Local Government Code, as the Court did in Mactan and recently in Philippine Rural Electric Cooperatives Association, Inc. et al. v. Secretary of Interior And Local Government, et al. 21 and in ruling that the tax exemptions of GSIS were withdrawn by the Code. Thus, the crucial proposition is whether the GSIS tax exemptions can be deemed as withdrawn by the Local Government Code notwithstanding Section 33 of P.D. No. 1146 as amended. Concededly, it does not appear that at the very least, the second conditionality of Section 33 has been met. No provision has been enacted "to substitute the declared policy of exemption from any and all taxes as an essential factor for the solvency of the fund." 22 Yet the Court is averse to employing this framework, in the first place as utilized by the RTC, for we recognize a fundamental flaw in Section 33, particularly the amendatory second paragraph introduced by P.D. No. 1981. IcaHTA The second paragraph of Section 33 of P.D. No. 1146, as amended, effectively imposes restrictions on the competency of the Congress to enact future legislation on the taxability of the GSIS. This places an undue restraint on the plenary power of the legislature to amend or repeal laws, especially considering that it is a lawmaker's act that imposes such burden. Only the Constitution may operate to preclude or place restrictions on the amendment or repeal of laws. Constitutional dicta is of higher order than legislative statutes, and the latter should always yield to the former in cases of irreconcilable conflict. It is a basic precept that among the implied substantive limitations on the legislative powers is the prohibition against the passage of irrepealable laws. 23 Irrepealable laws deprive succeeding legislatures of the fundamental best senses carte blanche in crafting laws appropriate to the operative milieu. Their allowance promotes an unhealthy stasis in the legislative front and dissuades dynamic democratic impetus that may be responsive to the times. As Senior Associate Justice Reynato S. Puno once observed, "[t]o be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change." 24 Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same

plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience. It might be argued that Section 33 of P.D. No. 1146, as amended, does not preclude the repeal of the tax-exempt status of GSIS, but merely imposes conditions for such to validly occur. Yet these conditions, if honored, have the precise effect of limiting the powers of Congress. Thus, the same rationale for prohibiting irrepealable laws applies in prohibiting restraints on future amendatory laws. President Marcos, who exercised his legislative powers in amending P.D. No. 1146, could not have demanded obeisance from future legislators by imposing restrictions on their ability to legislate amendments or repeals. The concerns that may have militated his enactment of these restrictions need not necessarily be shared by subsequent Congresses. We do not mean to trivialize the need to ensure the solvency of the GSIS fund, a concern that has seen legislative expression, even with the most recently enacted Government Service Insurance System Act of 1997. 25 Yet at the same time, we recognize that Congress has the putative authority, through valid legislation, to diminish such fund, or even abolish the GSIS itself if it so desires. The GSIS may provide vital services and security to employees of the civil service, yet it is not a sacred cow that is beyond abolition by Congress if, for example, more innovative methods are devised to ensure stable pension funds for government employees. If Congress has the inherent power to abrogate the GSIS itself, then it necessarily has the ability to inflict less detrimental burdens, such as abolishing its tax-exempt status. If there could be legal authority proscribing the Congress from enacting such legislation, such should be sourced from the Constitution itself, and not from antecedent statutes which were themselves enacted by legislative power. aIDHET The Court's position is aligned with entrenched norms of statutory construction. In Duarte v. Dade, 26 the Court cited with approval Lewis' Southerland on Statutory Construction, which states: A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. (Emphasis supplied. ) 27

The citation is particularly apropos to our present task, since the question for resolution is primarily one of statutory construction, i.e., whether or not Section 33 of P.D. No. 1146 has been repealed by the Local Government Code. It is evident that we cannot render effective the amendatory second paragraph of Section 33 as the RTC did, for by doing so, we would be giving sanction to a disingenuous means employed through legislative power to bind subsequent legislators to a particular mode of repeal. Thus, the two conditionalities of Section 33 cannot bear relevance on whether the Local Government Code removed the tax-exempt status of the GSIS. The express withdrawal of all tax exemptions accorded to all persons, natural or juridical, as stated in Section 193 of the Local Government Code, applies without impediment to the present case. Such position is bolstered by the other cited provisions of the Local Government Code, and by the Mactan ruling. There are other reasons that guide us to construe the Local Government Code in favor of the City of Davao's position. Section 5 of the Local Government Code provides the guidelines on how to construe the Code's provisions in cases of doubt, and they are self-explanatory, thus: Section 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; (b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly against the local government unit enacting it, and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local government unit pursuant to the provisions of this Code shall be construed strictly against the person claiming it; (Emphasis supplied.) Also worthy of note is that the Constitution itself promotes the principles of local autonomy as embodied in the Local Government Code. The State is mandated to ensure the autonomy of local governments, 28 and local governments are empowered to levy taxes, fees and charges that accrue exclusively to them, subject to congressional guidelines and limitations. 29 The principle of local autonomy is no mere passing dalliance but a constitutionally enshrined precept that deserves respect and appropriate enforcement by this Court. aASEcH We are aware that this stance runs contrary to that which was adopted by the Secretary of Justice in his Opinion dated 22 July 1993, as well as the memorandum from the Office of the President dated 14 February 1995, expressing the same

opinion. However, statutory interpretations of these executive bodies do not hold decisive sway upon the judiciary but are merely persuasive. These issuances cannot derogate from the binding precept that one legislature cannot enact irrepealable legislation or limit or restrict its own power or the power of its successors as to the repeal of statutes. 30 The act of one legislature is not binding upon and does not tie the hands of future legislatures. 31 The GSIS's tax-exempt status, in sum, was withdrawn in 1992 by the Local Government Code but restored by the Government Service Insurance System Act of 1997, the operative provision of which is Section 39. 32 The subject real property taxes for the years 1992 to 1994 were assessed against GSIS while the Local Government Code provisions prevailed and, thus, may be collected by the City of Davao. WHEREFORE, premises considered, the Petition for Review is hereby GRANTED. The appealed Decision of the Regional Trial Court of Davao City, Branch 12 is REVERSED and SET ASIDE. Costs de oficio. SO ORDERED. Puno, Austria-Martinez Callejo, Sr. and Chico-Nazario, JJ., concur. Footnotes 1. R.A. No. 7160.

2. 330 Phil. 392 (1996). Reiterated in Philippine Rural Electric Cooperatives Association, Inc. et al. v. Secretary of Interior And Local Government, et al., 451 Phil. 683 (2003). See also Philippine Ports Authority v. City of Iloilo, infra at note 18. 3. 4. 5. 6. 7. 8. 9. 10. 11. Section 2, Article X. Authorized under Section 2(c), Rule 41, 1997 Rules of Civil Procedure. Rollo, p. 32. Id. at 9. Records, p. 26. Id. at 128. See Rollo, p. 12. Id. at 121-127. Id. at 123.

12. 13. 14. 15. 16. 17.

Id. at 125. Id. at 126-27. Id. at 175. G.R. No. 90639, 21 February 1990, 182 SCRA 482. Supra note 12. Section 6, P.D. No. 1981, amending Section 33, P.D. No. 1146.

18. See Philippine Ports Authority v. City of Iloilo, G.R. No. 109791, 14 July 2003, 406 SCRA 88, 98. 19. 20. See Rollo, p. 23. Supra note 2 at 411-413.

21. 451 Phil. 683 (2003). See also Philippine Ports Authority v. City of Iloilo, supra note 18. 22. Supra note 17.

23. See A.B. NACHURA, OUTLINE OF POLITICAL LAW REVIEWER at 174. There can be no vested right to the continued existence of a statute which precludes its change or appeal. See also Traux v. Corrigan, 257 U.S. 312, 66 L. Ed. 254, cited in Asociacion De Agricultores De Talisay-Silay, Inc. v. Talisay-Silay Milling Co., Inc., G.R. Nos. L19937 & L-21304, 19 February 1979, 88 SCRA 294, 452. 24. "To be sure, there are no irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and we should not fear change." J. Puno, concurring and dissenting, Defensor-Santiago v. COMELEC, 336 Phil. 848, 918 (1997). 25. Republic Act 8291, which contains a similar tax exempting provision in its Section 39 cf., footnote 35, infra. 26. 32 Phil. 36 (1915).

27. Id. at 49, citing LEWIS' SOUTHERLAND ON STATUTORY CONSTRUCTION, vol. 1, section 244, pp. 456-57. 28. 29. 30. 31. Article II, Sec. 25, 1987 Constitution. Id., Article X, Sec. 5. 59 C.J., sec. 500, pp. 899-900. Ibid.

32. Sec. 39. Exemption from tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the GSIS shall be preserved and maintained at all times and that the contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the GSIS and their employees. Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding any laws to the contrary, the GSIS, its assets, revenues including the accruals thereto, and benefits paid, shall be exempt from all taxes. These exemptions shall continue unless expressly and specifically revoked and any assessment against the System as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect. Moreover, these exemptions shall not be affected by subsequent laws to the contrary, unless this section is expressly and categorically repealed by law and a provision is enacted to substitute or replace the exemption referred to herein as an essential factor to maintain or protect the solvency of the fund, notwithstanding and independently of the guaranty of the national government to secure such solvency or liability. xxx xxx xxx

It does not escape this Court's attention that Section 39 of Republic Act No. 8291 essentially replicates Section 33 of P.D. No. 1146, as amended, including those conditionalities on future repeal which we had observed to be flawed. Nonetheless, the Court is precluded as of now from making any declaration regarding Section 39 of R.A. No. 8291, since the said provision is not relevant to this case, nor would any corresponding declaration assist in the resolution of the issues of this case, which after all involves taxes assessed prior to the enactment of R.A. No. 8291. We likewise do not see any foreseeable instance wherein the status of Section 39 of R.A. No. 8291 would become ripe for judicial adjudication, unless and until there is subsequent legislation enacted affecting the tax-exempt status of the GSIS, or at least attempts in Congress to pass such legislation. Until then, judicial silence is proper.

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A.M. No. MTJ-04-1553 August 18, 2005 VIOLETA N. BELTRAN vs. JAIME D. RAFER

FIRST DIVISION [A.M. No. MTJ-04-1553. August 18, 2005.] (Formerly OCA-IPI No. 03-1453-MTJ) VIOLETA N. BELTRAN, complainant, vs. JUDGE JAIME D. RAFER, Municipal Circuit Trial Court, Talisay-Laurel, Batangas, respondent. SYLLABUS 1. JUDICIAL ETHICS, ADMINISTRATIVE CHARGES AGAINST JUDGES; MISCONDUCT; ONE THAT AFFECTS THE OFFICER'S PERFORMANCE OF HIS DUTIES AS AN OFFICER. The OCA correctly noted that the private commercial transaction between complainant and respondent Judge giving rise to this complaint precludes a finding of misconduct against the latter. Misconduct in the office is one that affects their officer's performance of his duties as an officer and not one that affects his character as a private individual. Furthermore, there is no showing here of the corrupt motive or intention to violate the law required to sustain such a charge. aSADIC 2. ID.; CODE OF JUDICIAL CONDUCT; A JUDGE SHOULD AVOID IMPROPRIETY AND APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES. [R]espondent Judge is liable for impropriety. This Court has repeatedly held that no position exacts a greater demand on the moral uprightness of an individual than a seat in the judiciary. This is because the judge is the visible representation of the law and, more importantly, of justice. From him, the people draw their will and awareness to obey the law. Thus, for the judge to return that regard, he must be the first to abide by the law and weave an example for the others to follow. He should be studiously careful to avoid even the slightest infraction of the law. Thus the judge's behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach. As Canon 2 of the Code of Judicial Conduct mandates, "[a] judge should avoid impropriety and the appearance of impropriety in all activities." 3. ID; ADMINISTRATIVE CHARGES AGAINST JUDGES; IMPROPRIETY; INCLUDES A JUDGE ISSUING BOUNCING CHECKS. Here, respondent Judge admits his account which on the due date of the checks did not have sufficient funds to cover the value of the checks. By doing so, he acted with obvious impropriety in disregard of the strictest standards of conduct of his high office. Respondent Judge ought to know that there are laws penalizing what he did. In Sevilla v. Salubre, where as here, the respondent Judge issued bouncing checks, the Court held: [B]y issuing two checks after he was already discharging his duties as a Judge . . ., which later on were both dishonored on the ground "account closed," respondent failed to keep up with the exacting standards of the canons of Judicial Ethics. . . . A magistrate of the law must comport himself at all times in such a manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice, respondent Judge cannot take refuge in

complainant's early encashment of the checks despite his alleged request to the contrary. It is respondent Judge's failure to fund the checks he issued and not complainant's "precipitate" encashment of the checks which renders respondent Judge liable. On the other hand, respondent Judge's altruistic motives in issuing the checks, while commendable, cannot exempt him from liability. After voluntarily imposing on himself an obligation, respondent Judge was bound to fulfill it.

4. ID.; ID.; NOT SUBJECT TO COMPROMISE. Contrary to respondent Judge's submission, his conveyance to complainant of several pieces of realty does not "close and terminate" this case. Disciplinary proceedings involve not only private interest. They are undertaken to maintain the faith and confidence of the people in the government. Thus, in several cases, this Court proceeded with the determination of the administrative liability of court officials and employees over the parties' wishes to dismiss the cases. To allow the parties to dictate the course of disciplinary investigations such as the present case would render hollow the Court's power of supervision over court officials and employees and prejudice public service. cAaDHT DECISION CARPIO, J p: The Case This is an administrative complaint against respondent Judge Jaime D. Rafer ("respondent Judge") of the Municipal Circuit Trial Court, Talisay-Laurel, Batangas for Grave Misconduct. IaHCAD The Facts In her Complaint dated 31 July 2003, complainant Violeta N. Beltran ("complainant") alleged that respondent Judge issued to her four checks 1 amounting to P672,000. When presented for encashment, the checks were dishonored for insufficiency of funds or closure of account. Complainant claimed that respondent Judge issued the checks as reimbursement for the downpayment complainant paid to respondent Judge in the aborted sale of the latter's apartment to complainant. Complainant disclosed that she had also filed a criminal complaint against respondent Judge for violation of Batas Pambansa Blg. 22 and that the case is pending with Branch 25 of the Metropolitan Trial Court, Manila. In his Comment dated 5 January 2004, respondent Judge did not deny issuing the checks subject of the complaint or the fact of the dishonor of the checks. To explain the events leading to the issuance of the checks, respondent Judge alleged that: (1) the contract of conditional sale between him and complainant over his four-door apartment in Pandacan, Manila was for P2,000,000, with P250,000 as downpayment; (2) the apartment was mortgaged to the Luzon Development Bank and he intended to

use the proceeds of the sale to stop the bank from foreclosing its mortgage over the apartment; (3) a certain Raquel Carpio and "Aling Loria" ("realtors") brokered the sale between him and complainant; and (4) after making inquiries to find out why, after paying the downpayment, complainant stopped giving further payments, respondent Judge learned that complainant entrusted the subsequent payments to the realtors who pocketed the money. To explain why he nevertheless issued the checks to complainant, respondent Judge alleged: It may be asked: Why did I issue the checks representing refund of the money of the complainant instead of forfeiting the same for their (sic) failure to comply with our Agreement? cEASTa My answer is: At the time I issued the checks, the title of the apartment was not yet consolidated in the name of the [Luzon Development Bank]. I was then entertaining the idea that I could still sell the same to other buyer (sic) and since the complainant, a Public School Teacher like my wife, and her husband, a seaman who spent months and years away from his family, had worked hard to earn said money, I volunteered to refund their money although under our contract I can forfeit the same to temper, if not compensate, the loss I suffered, I felt I was morally obliged to return their money. Hence, I issued the questioned checks on the conditions (sic) that they will defer encashment of the same until I sold said apartment to the other buyer. Actually, the actual amount involved was only about P400,000.00 and of this amount I received only P250,000.00 but I issued checks in the total amount of P650,000.00, 2 adding P250,000.00 as interest, while riding on the positive idea that I could sell the apartment at a price higher than we had agreed upon. Respondent Judge added that "to end this problem," he has conveyed to complainant parcels of land in Labo, Camarines Norte. Hence, according to him, this case should be considered "closed and terminated." 3 The Recommendation of the Office of the Court Administrator In its Report dated 5 May 2004 ("Report"), the Office of the Court Administrator ("OCA") found respondent Judge liable for impropriety and recommended the imposition of a fine of P10,000. The Report reads: The administrative and criminal complaints filed by complainant against respondent are offshoots of a Deed of Conditional Sale of a four (4) door apartment entered into between respondent, as vendor, and complainant, as vendee. The agreed price of the apartment was P2,000[,]000.00 and downpayments were made by the vendee. The sale was not consummated and, by way of reimbursing the downpayments made, respondent issued checks in favor of the complainant which were dishonored when presented for payment. HDTSIE

Misconduct in office means that it is a misconduct that affects the performance of the duties of the respondent judge and not those that affect his character or his personal behavior as a public officer. In the instant case, complainant failed to present evidence showing that the acts complained of were related to respondent's official duties. Selling property and issuing checks are not connected with the official duties of the respondent judge. The Code of Judicial Conduct, however, provides that a judge should not only avoid impropriety, but also the appearance of impropriety in all activities. He should be careful in his dealings, both in his professional and individual capacities[,] in order to promote and protect the image of the judiciary to which he is privilege (sic) to belong . . . . 4 The Court's Ruling The Court finds the Report well-taken. Respondent Judge is Liable for Impropriety The OCA correctly noted that the private commercial transaction between complainant and respondent Judge giving rise to this complaint precludes a finding of misconduct against the latter. Misconduct in office is one that affects the officer's performance of his duties as an officer and not one that affects his character as a private individual. 5 Furthermore, there is no showing here of the corrupt motive or intention to violate the law required to sustain such a charge. 6 Instead, respondent Judge is liable for impropriety. This Court has repeatedly held that no position exacts a greater demand on the moral uprightness of an individual than a seat in the judiciary. 7 This is because the judge is the visible representation of the law and, more importantly, of justice. From him, the people draw their will and awareness to obey the law. . . . Thus, for the judge to return that regard, he must be the first to abide by the law and weave an example for the others to follow. He should be studiously careful to avoid even the slightest infraction of the law. 8 (Emphasis supplied) SAEHaC Thus, the judge's behavior, not only while in the performance of official duties but also outside the court, must be beyond reproach. 9 As Canon 2 of the Code of Judicial Conduct mandates, "[a] judge should avoid impropriety and the appearance of impropriety in all activities." Here, respondent Judge admits having issued checks, in a commercial transaction, drawn against his account which on the due date of the checks did not have sufficient funds to cover the value of the checks. By doing so, he acted with obvious impropriety in disregard of the strict standards of conduct of his high office. Respondent Judge ought to know that there are laws penalizing what he did. In Sevilla

v. Salubre, 10 where, as here, the respondent Judge issued bouncing checks, the Court held: [B]y issuing two checks after he was already discharging his duties as a Judge . . . , which later on were both dishonored on the ground "account closed," respondent failed to keep up with the exacting standards of the Canons of Judicial Ethics. . . . A magistrate of the law must comport himself at all times in such a manner that his conduct, official or otherwise, can bear the most searching scrutiny of the public that looks up to him as the epitome of integrity and justice. EAHcCT Respondent Judge cannot take refuge in complainant's early encashment of the checks despite his alleged request to the contrary. It is respondent Judge's failure to fund the checks he issued and not complainant's "precipitate" encashment of the checks which renders respondent Judge liable. On the other hand, respondent Judge's altruistic motives in issuing the checks, while commendable, cannot exempt him from liability. After voluntarily imposing on himself an obligation, respondent Judge was bound to fulfill it. Administrative Proceedings are not Subject to Compromise Contrary to respondent Judge's submission, his conveyance to complainant of several pieces of realty does not "close and terminate" this case. Disciplinary proceedings involve not only private interest. They are undertaken to maintain the faith and confidence of the people in the government. 11 Thus, in several cases, 12 this Court proceeded with the determination of the administrative liability of court officials and employees over the parties' wishes to dismiss the cases. To allow the parties to dictate the course of disciplinary investigations such as the present case would render hollow the Court's power of supervision over court officials and employees and prejudice public service. We agree with the recommendation of the OCA to impose on respondent Judge a fine of P10,000. TCHcAE WHEREFORE, we FIND respondent Judge Jaime D. Rafer of the Municipal Circuit Trial Court, Talisay-Laurel, Batangas GUILTY of impropriety for which we FINE him P10,000. SO ORDERED. Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur. Footnotes 1. Dated 5 February 2002, 5 March 2002, 5 April 2002, and 5 May 2002, all drawn against Equitable PCI Bank Sto. Tomas, Batangas Branch.

2. While respondent Judge claims to have issued checks worth P650,000, the total amount of the dishonored checks is P672,000. 3. 4. 5. 6. 7. 592. 8. 9. 10. 11. Comment, pp. 1-3. Report, pp. 3-4. Lacson v. Roque, etc., et al., 92 Phil. 456 (1953). In re Impeachment of Horrilleno, 43 Phil. 212 (1922). Sevilla v. Salubre, Adm. Matter No. MTJ-00-1336, 19 December 2000, 348 SCRA De la Paz v. Inutan, Adm. [Matter] No. 201 MJ, 30 June 1975, 64 SCRA 540. Molina v. Paz, A.M. No. RTJ-01-1638, 8 December 2003, 417 SCRA 174. Supra note 7. Pimentel v. De Leoz, A.M. No. P-02-1620, 1 April 2003, 400 SCRA 193.

12. E.g. Pimentel v. De Leoz, supra note 11; Sy v. Academia, Adm. Matter No. P-8772, 3 July 1991, 198 SCRA 705.

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A.M. No. MTJ-02-1421 August 18, 2005 ANGELITO V. LUMABAS vs. EMMANUEL G. BANZON EN BANC [A.M. No. MTJ-02-1421. August 18, 2005.] PROSECUTOR ANGELITO V. LUMABAS, complainant, vs. JUDGE EMMANUEL G. BANZON, MUNICIPAL TRIAL COURT OF MARIVELES, BATAAN, respondent. SYLLABUS 1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CONTEMPT; INDIRECT CONTEMPT; RULES; CASE AT BAR. The Rules require that before one is punished for indirect contempt of court, first, a charge in writing must be made. Second, the respondent must be given the opportunity to comment or show cause why he should not be punished for contempt, within a period as may be fixed by the court, and to be heard by himself or counsel. Prosecutor Lumabas claims that the order of Judge Banzon on

August 24, 2000 cited and punished him for contempt without giving him the opportunity to comment and to be heard. On the other hand, Judge Banzon claims that he gave Lumabas an opportunity to comment through his order of August 17, 2000, which required Lumabas to explain his absence of the same date. A careful scrutiny of both orders shows that they are unrelated. First, the August 17 order was made in the case of People v. Bueno, while the August 24 order was made in the case of People v. Niones. Second, the August 17 order required the prosecutor to submit a written explanation for his absence on that day. There was no indication that this order was for the purpose of giving Lumabas an opportunity to show cause why he should not be cited in contempt for his absence on that day. On the other hand, the August 24 order merely said that the prosecuting fiscal was cited in contempt for his unjustified absence and fined in the amount of P500 and in case he failed to pay he should be committed to jail for one day, without making any reference to a specific day. No reference was made to the order of August 17, much less to Prosecutor Lumabas' failure to explain his absence on August 17. Judge Banzon's argument in his rejoinder that the August 24 order was due to Lumabas' failure to submit a written explanation for his absence on August 17 finds no support in the records. Hence, the order of August 24, which cited Prosecutor Lumabas in contempt and imposed a P500-fine or a one-day imprisonment in case of failure to pay, violated the rules on indirect contempt since Lumabas was not given an opportunity to explain before the penalty for contempt was imposed. The order was therefore issued in gross ignorance of the law. DAaEIc 2. ID.; ID.; ID.; ID.; ID.; PERSON CITED IN CONTEMPT MUST BE GIVEN THE OPPORTUNITY TO COMMENT WITHIN SUCH PERIOD AS MAY BE FIXED BY THE COURT; VIOLATED BY THE RESPONDENT JUDGE IN CASE AT BAR. The order for contempt of court by Judge Banzon which was issued on September 14, 2000 is without ground. First of all, the judge did not give Prosecutor Lumabas the time provided in his order to explain his absence, which was five days from receipt. According to Prosecutor Lumabas, he received the September 7 order only on September 13, 2000, thus he still had until September 18 to submit his explanation. Though Lumabas submits no proof that he received the order on September 13, other than his own personal assertion, such fact is not contested by Judge Banzon. Thus, the order of the Judge citing and penalizing Lumabas for contempt of court on September 13, 2000 violates the requirement in Rule 71, Section 3 of the Rules of Court which requires that the person being cited in contempt be given the opportunity to comment within such period as may be fixed by the court. Judge Banzon fixed the period which was five days from receipt of the order which he himself violated by citing Lumabas in contempt only one day after receipt of the order to explain. 3. JUDICIAL ETHICS; JUDGES; CITING A PERSON IN CONTEMPT AND ORDERING HIS INADEQUATE ARREST WITHOUT GIVING HIM AN OPPORTUNITY TO COMMENT CONSTITUTES GROSS IGNORANCE OF THE LAW; IMPOSABLE PENALTY; CASE AT BAR. The Office of the Court Administrator found that Judge Banzon acted in gross

ignorance of the law by citing Prosecutor Lumabas in contempt and ordering his immediate arrest without giving him a chance to be heard. The Office of the Court Administrator recommended a Five Thousand Peso (P5,000) fine be imposed on Judge Banzon with a warning that a repetition of the same or similar acts in the future would be dealt with more severely. This Court agrees with the findings of the Court Administrator, but not with the recommended penalty. First of all, gross ignorance of the law, under Rule 140, Section 8 of the Rules of Court, is classified as a "Serious Charge." Serious charges under Section 11 of the same Rule merit the following sanctions: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00. Secondly, Judge Banzon illegally cited Prosecutor Lumabas in contempt not once but twice. cDCHaS DECISION AZCUNA, J p: This is an administrative complaint filed by Angelito V. Lumabas against Judge Emmanuel G. Banzon. 1 Lumabas is a prosecutor assigned to the sala of Judge Banzon. In an Affidavit Complaint, 2 Lumabas alleged the following: On August 17, 2000, Prosecutor Lumabas was feverish and asked his wife to inform the office and the Clerk of Court of the Municipal Trial Court of Mariveles, Bataan that he would not be able to report for work and to inform Judge Banzon of the same. On the same date, the court in six orders, acknowledged the advice of absence, but in Criminal Case No. 00-6642/43, entitled People v. Bueno, it required Prosecutor Lumabas to submit a written explanation for his absence and to submit a medical certificate if he was really sick, within five days from receipt of the order. aESICD On August 24, 2000, Lumabas filed his written explanation, dated August 23, 2000, in compliance with the August 17, 2000 order. Therein, he explained his physical condition on August 17, 2000 and said that he no longer consulted a doctor since his condition improved dramatically the following day. He further said that there was no intention on his part to delay the administration of justice. At the hearing of August 24, 2000, Lumabas was about ten minutes late and consequently missed the first case called that day, which was People v. Emerito Niones. Lumabas claims that upon entering the courtroom he begged the indulgence of the judge and gave the reason for his tardiness. Subsequently, the trial of the other criminal cases went on smoothly. Court session on that date adjourned at around 5:10 p.m. After adjournment, one of the lawyers whispered to the prosecutor that he was cited for contempt of court and required to pay a fine of P500. Surprised,

Lumabas approached Judge Banzon in his chambers to explain and apologize for being late that day. Judge Banzon replied that the order had already been issued and required him to pay the fine otherwise he would be imprisoned. Lumabas claims that since he was aware of the rules on indirect contempt, he left the courtroom and expected a formal charge and an opportunity to explain. On August 26, 2000, Saturday, at about 9:30 a.m., police officers from Mariveles sought Lumabas at his residence to implement a warrant of arrest issued by Judge Banzon. Since Lumabas was not home at that time, it was his wife who talked to the police officers. He was informed by his wife of the incident when he arrived later in the afternoon. aCSEcA On August 29, 2000, Tuesday, Lumabas filed a Motion for Postponement of the hearings before the Municipal Trial Court of Mariveles scheduled for August 31, 2000 and of the succeeding hearings since he was diagnosed with hypertension and was advised to rest. Subsequently, he submitted himself to the jurisdiction of the Regional Trial Court of Balanga, Bataan, Branch 4, and filed a bail bond in the amount of P500. As a consequence, the Executive Judge issued an order recalling the warrant of arrest issued by Judge Banzon. On the same day Lumabas filed a Notice of Appeal before the Municipal Trial Court of Mariveles, Bataan. On August 31, 2000, Judge Banzon acted on the Motion for Postponement filed on August 29, 2000 through two orders directing the Provincial Prosecutor to assign another prosecuting attorney to attend to the numerous cases pending in his court. On September 4, 2000, Lumabas made a formal request for his reassignment to another court. His request was approved by the Provincial Prosecutor through an interoffice memorandum dated September 6, 2000. On September 5, 2000, Lumabas filed a request for another leave of absence which was approved by the Provincial Prosecutor. In a letter dated September 8, 2000, in compliance with the two orders dated August 31, 2000, the Provincial Prosecutor informed the court in a letter that in view of the request for the replacement of Prosecutor Lumabas, Prosecutor Oscar M. Lasam was already assigned to take his place. However, the latter could not appear before the sala of Judge Banzon until October 1, 2000 since he still had to coordinate and adjust his new assignment with his previous assignments in other courts. This letter was received by Judge Banzon on September 11, 2000. On September 7, 2000, Judge Banzon issued another order requiring Lumabas to explain within five days from receipt why he should not be held liable for criminal and administrative sanctions for his consistent failure to appear and refusal to abide by the legal orders issued by the court. The order was served on Lumabas on September 13, 2000. Lumabas, in compliance with the above order, prepared an extensive explanation, dated September 18, 2000. EITcaH

However, even before Lumabas was able to file his explanation within the period granted by the court and despite the letter-compliance by the Provincial Prosecutor stating that Prosecutor Lumabas had already been reassigned and the motion for postponement dated August 29, 2000, Judge Banzon issued a second contempt order against Lumabas, dated September 14, 2000, for his absence without justifiable reason despite notice and for failure to submit a reasonable explanation for his absence. In compliance with the indorsement by the Office of the Court Administrator, Judge Banzon filed his comment dated January 10, 2001, in which he claims that there is no truth to the accusations and to the allegation that he has personal animosity against Prosecutor Lumabas. The Judge claims that he is merely reacting to the frequent abrupt absences of Lumabas, which has been going on for some time and that the absence of Lumabas on August 17, 2000 was a repetition of his previous practice of abrupt absences. Because of his absence on August 17, 2000, the court was constrained to reset the trial of all the cases scheduled for that day and the court ordered him to submit a written explanation for his absence and to submit a medical certificate under oath within five days from receipt. The Judge alleged that Lumabas failed to comply with the show cause order. On August 24, 2000, Prosecutor Lumabas was allegedly fifteen minutes late and had missed the calling of four to five cases. The Judge claims that Lumabas made a "dramatic entrance like a strutting peacock announcing his appearance." The Judge castigated him in open court and informed him of the contempt order he had previously dictated and that a fine was already meted out against him. The Judge also asked him why he did not submit a written explanation for his absence the previous week and he retorted that it was in his car. Lumabas apologized and promised to pay the fine at the end of the hearing. After the session that day, Lumabas entered the chambers to beg leave for the remission of the fine, but the Judge refused and just told him to return the next day to pay the fine. cSTCDA Lumabas did not return to pay the fine the following day, which brought the Judge to the end of his patience and he issued a bench warrant for his arrest pursuant to the contempt order. After that, Lumabas refused to appear before the court of Judge Banzon. Instead, he contested the contempt order and appealed the same to the Regional Trial Court of Balanga, Bataan, Branch 4. In response to the Comment of Judge Banzon, Prosecutor Lumabas filed an undated Reply, 3 in which he reiterated the factual supports for his complaint of gross ignorance of the law and gross misconduct. Lumabas also asserted that the possible motive for Judge Banzon's sudden antagonism towards him is that the Judge's brother-in-law was convicted under the Dangerous Drugs Act of 1972 in the Regional Trial Court of Balanga, Bataan, a case which was prosecuted by Lumabas himself, inspite of the judge's insinuation that he was handling the case of the judge's brotherin-law.

Prosecutor Lumabas also took exception to some of the matters raised in the Judge's comment, as follows: That the absence of Lumabas on August 17, 2000 caused embarrassment to the court in the presence of opposing lawyers. Lumabas claims that most of the opposing counsels with cases scheduled for that day were informed of the absence of the prosecutor and did not even proceed to the Municipal Trial Court. That Lumabas missed four to five cases since he arrived late on August 24, 2000. He points out that he was only 10 minutes late and missed only one case, namely People v. Emerito Niones. That Lumabas did not submit a written explanation on the hearing of August 24, 2000 for his absence at the hearing of August 17, 2000. The copy of the order dated August 17, 2000 which required the prosecutor to explain his absence within five days from receipt, was received by him only on August 22, 2000, which, in effect, gave him until August 27, 2000. It was therefore unjust that the judge required him to submit his explanation on August 24. TESICD That Lumabas arrived late and "made a dramatic entrance like a strutting peacock announcing his appearance" and it was at that point that Judge Banzon castigated him in open court and informed him of the contempt order. He points out that he hurriedly entered the courtroom, aware that he was already late that day. Furthermore, Lumabas said that he was never informed by Judge Banzon of the contempt order and he was only informed of the order after the session by an opposing counsel. And it was only then that he approached the Judge in his chambers to explain and to seek a reconsideration of the contempt order. That Lumabas admitted and apologized for his fault and promised to pay the fine after the termination of the hearing at 5:00 p.m. He claims that he appealed for a reconsideration of the contempt order. Furthermore, he did not promise to pay the fine the next day. That Lumabas refused to appear before Judge Banzon despite notices sent to him. This prompted Judge Banzon to refer this dereliction of duty to his superiors at the Department of Justice. Lumabas contends that he informed his superiors of his predicament with Judge Banzon. He said that the Judge was duly informed of his state of health through a Motion for Postponement. In addition, the Provincial Prosecutor replied to the Judge's order for a replacement. Despite all these notifications, Judge Banzon still cited him again for contempt of court on September 14, 2000, imposing a penalty of imprisonment of one day, and ordered that copies of the contempt order be furnished the Bataan Provincial Prosecutor, the Regional State Prosecutor in San Fernando, Pampanga, the Chief State Prosecutor and the Secretary of Justice. Lumabas further discloses that the Department of Justice was duly informed of his predicament in the court of Judge Banzon and that his request for a reassignment to another court was favorably acted upon by the Provincial Prosecutor of Bataan via a

radio directive of the Regional State Prosecutor in San Fernando, Pampanga. DCcSHE On June 6, 2001, Prosecutor Lumabas forwarded to the Office of the Court Administrator a certified true copy of a decision, dated March 8, 2001, of the Regional Trial Court of Balanga, Bataan, Branch 4 in a case entitled Angelito Lumabas v. Hon. Emmanuel G. Banzon. 4 The Regional Trial Court found the contempt order of August 24, 2000 and the warrant of arrest issued by Judge Banzon as "harsh, cruel and grossly disproportionate penalties imposed upon accused appellant issued in violation and disregard of the constitutional mandate of due process and the Rules of Court" and declared complainant not guilty of indirect contempt. The Office of the Court Administrator made the following evaluation and recommendation, dated February 13, 2002: EVALUATION: Rule 71, Section 3, 1997 Rules of Civil Procedure specifically outlines the procedural requisites before one may be punished for indirect contempt, namely: (1) the filing of a written charge and (2) opportunity given to the accused to be heard by himself or counsel. Specifically, Section 4 of the same rule provides how the case for indirect contempt may be commenced. Section 4. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of, or are related to, a principal action pending in the court, the petition for contempt shall be docketed, heard and decided separately, when the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. DHATcE In the instant case, respondent Judge acted not only without or in excess of jurisdiction but with gross ignorance of the law. In declaring complainant guilty of indirect contempt of court and ordering his immediate arrest without giving him an opportunity to be heard, respondent Judge violated the requirements of due process. As stated earlier, respondent Judge can not immediately impose a penalty without complying with the due process requirements, namely, the filing of a charge in writing and an opportunity to be heard by himself or by counsel. It is essential that the contemner be granted an opportunity to meet the charges against him and to be heard in defense, as contempt of court proceedings are commonly treated as criminal in nature.

In the case of Castaes vs. Escao, 251 SCRA 174, the Supreme Court held that: While the power to punish in contempt is inherent in all courts so as to preserve order in judicial proceedings and to uphold the due administration of justice, judges, however, should exercise their contempt powers for correction and preservation not for retaliation or vindication. RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court are our recommendations: 1. that the instant case be REDOCKETED as a regular administrative matter; and

2. that a FINE in the amount of FIVE THOUSAND PESOS (P5,000.00) be imposed against Judge Emmanuel G. Banzon with a WARNING that a repetition of the same or similar acts in the future shall be dealt with more severely. In a resolution dated April 17, 2002, the Court noted the affidavit-complaint; docketed the case as a regular administrative proceeding; and required the parties to manifest within ten days from notice if they are willing to submit the case for resolution on the basis of the pleadings filed. In response to the preceding resolution, Prosecutor Lumabas expressed his willingness to have the case submitted for resolution on the basis of the pleadings already submitted in a letter dated May 30, 2002. aEAIDH Since Judge Banzon failed to manifest his willingness to submit the case for resolution on the basis of the pleadings already filed despite his receipt of the April 17, 2002 resolution, the Court in a resolution dated April 30, 2003, required the Judge to "SHOW CAUSE why he should not be disciplinarily dealt with or held in contempt for such failure and to COMPLY with the resolution requiring said manifestation, both within ten (10) days from notice hereof." In a pleading entitled "Explanation," the Judge manifested that the resolution was misplaced and because of that he completely lost track of the case. The Judge also asked that he be allowed to present his rejoinder and additional affidavits. The Court in a resolution dated August 11, 2003, noted the Judge's explanation and granted his request for a period of 15 days from notice within which to file a rejoinder and additional documentary evidence. In a Rejoinder, dated September 17, 2003, Judge Banzon reiterated his arguments in his Comment. The Judge pointed out that his order of August 24, 2000 is premised on the failure of Prosecutor Lumabas to appear in court during the August 17, 2000 hearing.

Rule 71 of the Rules of Court prescribes the rules and procedure for indirect contempt. Sections 3 and 4 of the said rule reads as follows: SEC. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to

comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: xxx xxx xxx

SEC. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. HCacDE The Rules require that before one is punished for indirect contempt of court, first, a charge in writing must be made. Second, the respondent must be given the opportunity to comment or show cause why he should not be punished for contempt, within a period as may be fixed by the court, and to be heard by himself or counsel. Prosecutor Lumabas claims that the order of Judge Banzon on August 24, 2000 cited and punished him for contempt without giving him the opportunity to comment and to be heard. On the other hand, Judge Banzon claims that he gave Lumabas an opportunity to comment through his order of August 17, 2000, which required Lumabas to explain his absence of the same date. A careful scrutiny of both orders shows that they are unrelated. First, the August 17 order was made in the case of People v. Bueno, 5 while the August 24 order was made in the case of People v. Niones. 6 Second, the August 17 order required the prosecutor to submit a written explanation for his absence on that day. There was no indication that this order was for the purpose of giving Lumabas an opportunity to show cause why he should not be cited in contempt for his absence on that day. On the other hand, the August 24 order merely said that the prosecuting fiscal was cited in contempt for his unjustified absence and fined in the amount of P500 and in case he failed to pay he should be committed to jail for one day, without making any reference to a specific day. No reference was made to the order of August 17, much less to Prosecutor Lumabas' failure to explain his absence on August 17. Judge Banzon's argument in his rejoinder that the August 24 order was due to Lumabas' failure to submit a written explanation for his absence on August 17 finds no support in the records. Hence, the order of August 24, which cited Prosecutor Lumabas in contempt and imposed a P500-fine or a one-day imprisonment in case of failure to pay, violated the rules on indirect contempt since Lumabas was not given an opportunity to explain before the penalty for contempt was imposed. The order was therefore issued in gross ignorance of the law. HDCAaS Prosecutor Lumabas in his complaint questions the legality of another order penalizing him for indirect contempt which was issued on September 14, 2000. To prove the illegality of the order, Lumabas enumerated the following series of facts: On September 5, 2000, Lumabas filed an application for leave for the days of September 5 to 8, 2000, which was approved by the Provincial Prosecutor. Previously, on August

31, 2000, Judge Banzon issued two orders to the Provincial Prosecutor asking that a new prosecutor be assigned to his court to replace Prosecutor Lumabas, so as not to delay the hearing of cases. On September 8, 2000, in compliance with the two orders, the Provincial Prosecutor informed the court that a another prosecutor, by the name of Prosecutor Oscar M. Lasam, had already been assigned to take the place of Prosecutor Lumabas, however, the former could not appear until October 1, 2000 since he still had to coordinate his new assignment with his existing assignments in other courts. The letter was received by the court on September 11, 2000 as proven by a certification issued by the Postmaster of Mariveles, Bataan. On September 7, 2000, Judge Banzon issued an order requiring Prosecutor Lumabas to explain in writing within five days from receipt of the order why he should not be liable for criminal and administrative sanctions for his failure to appear at the hearing of that day. Lumabas claims to have received the order on September 13, 2000, which should have thus given him until September 18 to submit his explanation. Lumabas submitted an explanation dated September 18, 2000. However, in an order dated September 14, 2000 Judge Banzon cited Prosecutor Lumabas in contempt and penalized him with one day of imprisonment for his absence and failure to submit any reasonable explanation. The order for contempt of court by Judge Banzon which was issued on September 14, 2000 is without ground. First of all, the judge did not give Prosecutor Lumabas the time provided in his order to explain his absence, which was five days from receipt. According to Prosecutor Lumabas, he received the September 7 order only on September 13, 2000, thus he still had until September 18 to submit his explanation. Though Lumabas submits no proof that he received the order on September 13, other than his own personal assertion, such fact is not contested by Judge Banzon. Thus, the order of the Judge citing and penalizing Lumabas for contempt of court on September 13, 2000 violates the requirement in Rule 71, Section 3 of the Rules of Court which requires that the person being cited in contempt be given the opportunity to comment within such period as may be fixed by the court. Judge Banzon fixed the period which was five days from receipt of the order which he himself violated by citing Lumabas in contempt only one day after receipt of the order to explain. TEHDIA Second, Judge Banzon completely disregarded the fact that in compliance with two of his orders requesting for a new prosecutor to be assigned to his sala to replace Prosecutor Lumabas, the Provincial Prosecutor informed the court that Prosecutor Lumabas had already been replaced by Prosecutor Oscar M. Lasam. He was also informed that Prosecutor Lasam could not appear until October 1, 2000 since he still had to coordinate his old assignments with the new assignment to the sala of Judge Banzon. As stated above, such letter was received on September 11, 2000. Before finally citing and penalizing Prosecutor Lumabas for contempt on September 14, 2000, Judge Banzon should have taken into consideration the above letter of the

Provincial Prosecutor. This would have informed him that it was Prosecutor Lasam and no longer Prosecutor Lumabas who was assigned to his sala. Therefore, Prosecutor Lumabas was under no obligation to appear before him. Thus, there was no legal ground, as enumerated in Rule 71 of the Rules of Court, to cite him for indirect contempt of court. As quoted above, the Office of the Court Administrator found that Judge Banzon acted in gross ignorance of the law by citing Prosecutor Lumabas in contempt and ordering his immediate arrest without giving him a chance to be heard. The Office of the Court Administrator recommended a Five Thousand Peso (P5,000) fine be imposed on Judge Banzon with a warning that a repetition of the same or similar acts in the future would be dealt with more severely. This Court agrees with the findings of the Court Administrator, but not with the recommended penalty. First of all, gross ignorance of the law, under Rule 140, Section 8 of the Rules of Court, is classified as a "Serious Charge." Serious charges under Section 11 of the same Rule merit the following sanctions: 1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations: Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; SHIcDT 2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or 3. A fine of more than P20,000.00 but not exceeding P40,000.00.

Secondly, Judge Banzon illegally cited Prosecutor Lumabas in contempt not once but twice. WHEREFORE, this Court deems it proper to impose a FINE of TWENTY FIVE THOUSAND PESOS (P25,000) upon Judge Emmanuel G. Banzon, with a warning that a repetition of the same or similar acts in the future will be dealt with more severely. cCaATD SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Tinga, Chico-Nazario and Garcia, JJ., concur. Footnotes 1. 2. 3. Municipal Trial Court of Mariveles, Bataan. Dated October 18, 2000. Received by the Office of the Court Administrator on February 23, 2001.

4. 5. 6.

SPL CIVIL ACTION NO. 038-ML. CRIM. CASE NO. 00-6642/43. CRIM. CASE NO. 99-6124.

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A.M. No. 04-10-637-RTC August 18, 2005 DISAPPROVED APPOINTMENT OF MARICEL A. CUBIJANO EN BANC [A.M. No. 04-10-637-RTC. August 18, 2005.] DISAPPROVED APPOINTMENT OF MARICEL A. CUBIJANO, COURT STENOGRAPHER III, RTC-BRANCH 28, LIANGA, SURIGAO DEL SUR SYLLABUS 1. POLITICAL LAW; ADMINISTRATIVE LAW; COURT PERSONNEL; DISHONESTY; USE OF FALSE CERTIFICATE OF ELIGIBILITY; PUNISHABLE BY DISMISSAL FROM THE SERVICE EVEN IF COMMITTED ONLY FOR THE FIRST TIME. Dishonesty is a malevolent act. It is a grave offense punishable by dismissal from the service even if committed only for the first time. The use of a false certificate of eligibility constitutes an act of dishonesty which, under Section 52, Rule IV of the Uniform Rules on Administrative Cases, is a grave offense warranting the penalty of dismissal from the service. However, the dismissal of Cubijano from the service is no longer possible because the CSC has disapproved her appointment and she is no longer employed in the service. Nonetheless, the Court, on several occasions, has imposed the penalty of forfeiture of benefits and disqualification from re-employment in any branch of the government or any of its agencies or instrumentalities, including government owned and controlled corporations despite the respondent's resignation. 2. ID.; ID.; ID.; SHOULD BE AN EXAMPLE OF INTEGRITY, UPRIGHTNESS AND HONESTY. Dishonesty is a malevolent act that has no place in the judiciary. No other office in the government service exacts a greater demand for moral righteousness from an employee than a position in the judiciary. This Court has emphasized repeatedly that every employee of the judiciary should be an example of integrity, uprightness and honesty. The conduct required of court personnel, from the highest magistrate to the lowliest clerk, must always be beyond reproach. cEAHSC DECISION

PER CURIAM p: On 12 July 2002, Maricel A. Cubijano ("Cubijano") was issued a temporary appointment as Court Stenographer III in the Regional Trial Court of Lianga, Surigao del Sur, Branch 28. Her appointment was renewed on 21 May 2003. On 9 March 2004, Cubijano was issued a permanent appointment (change of status) to the position. The Civil Service Commission ("CSC"), however, disapproved the appointment because her name did not "appear in the roster of eligibles" and her "certificate of rating was found to be fake." cAaDCE When asked to comment, Cubijano, in her letter dated 9 July 2004, wrote that the issue had already become moot and academic because her employment was "terminated effective at the close of business hours last June 27, 2004 on the ground of expiration of term of office." Cubijano further alleges that she neither benefited nor gained anything materially since she was not issued a valid appointment. She claims that there was neither injury nor damage to the government and the civil service since she was not paid any salary or other compensation. She insists she acted in good faith when she submitted the result of her Civil Service Examination and she relied on the face of the document thinking all along that it was authentic. In its report and recommendation dated 28 October 2004, the Office of the Court Administrator ("OCA") states that a permanent appointment (change of status) was issued in favor of Cubijano on 9 March 2004 but the CSC subsequently disapproved it upon a finding that the career service professional eligibility of Cubijano was "found to be fake" as her name does not appear in the roster of eligibles. The OCA opines that the use of a false certificate of eligibility constitutes an act of dishonesty. Government service was prejudiced because the court was deprived from hiring other applicants who were genuinely qualified for the position. The OCA further states that dishonesty is a malevolent act which is considered a grave offense warranting the penalty of dismissal from the service. The OCA recommends that Cubijano be dismissed from the service with forfeiture of her retirement benefits and disqualification from reemployment in the government service. The certificate of rating showed on its face that Cubijano took the Career Service Professional Examination on 15 July 2001 at Cagayan de Oro. However, the CSC found that Cubijano's name was not included in the master list. Cubijano, nevertheless, insists she was in good faith when she submitted the result of her civil service examination. However, in her 9 July 2004 letter, Cubijano admits that the result of her civil service examination "turned out to be fake." Dishonesty is a malevolent act. It is a grave offense punishable by dismissal from the service even if committed only for the first time. 1 The use of a false certificate of eligibility constitutes an act of dishonesty which, under Section 52, Rule IV of the Uniform Rules on Administrative Cases, is a grave offense warranting the penalty of dismissal from the service. However, the dismissal of Cubijano from the service is no

longer possible because the CSC has disapproved her appointment and she is no longer employed in the service. Nonetheless, the Court, on several occasions, 2 has imposed the penalty of forfeiture of benefits and disqualification from re-employment in any branch of the government or any of its agencies or instrumentalities, including government owned and controlled corporations despite the respondent's resignation. Finally, we find untenable Cubijano's claim that she did not gain anything material from her submission of the questioned certificate and that there was no damage or injury to the government and the civil service since she was not paid any salary or other compensation. Cubijano was issued a "temporary appointment" on 12 July 2002 as Court Stenographer III (SG 12) with a salary of P134,004 per annum. She continued her services when her appointment was renewed effective 21 May 2003. On 9 March 2004, she was issued a permanent appointment (change of status) to the position. She was receiving salary for that period and her name was excluded from the EDP payroll of the court only upon her cessation from office. She was paid her salary during the two years she was employed in the court, either in the temporary or permanent capacity. AEaSTC Dishonesty is a malevolent act that has no place in the judiciary. 3 No other office in the government service exacts a greater demand for moral righteousness from an employee than a position in the judiciary. 4 This Court has emphasized repeatedly that every employee of the judiciary should be an example of integrity, uprightness and honesty. 5 The conduct required of court personnel, from the highest magistrate to the lowliest clerk, must always be beyond reproach. 6 WHEREFORE, we find Maricel A. Cubijano GUILTY of DISHONESTY. In view of the termination of her employment, all her benefits, if any, except accrued leave credits, are FORFEITED. She is further disqualified perpetually from re-employment in any branch of the government or any of its agencies or instrumentalities, including government owned and controlled corporations. DAHCaI SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, ChicoNazario and Garcia, JJ., concur. Footnotes 1. Uniform Rules on Administrative Cases in the Civil Service, Rule IV, Section 52 (A)(1). 2. Withholding of the Salary and Benefits of Michael A. Latiza, Court Aide, RTC-Br. 14, Cebu City, A.M. No. 03-3-179-RTC, 26 January 2005, 449 SCRA 278; Office of the Court Administrator v. Juan, A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654; Office of the Court Administrator v. Ferrer, 347 Phil. 667 (1997).

3. 4.

Pizarro v. Villegas, A.M. No. P-97-1243, 20 November 2000, 345 SCRA 42. Rabe v. Flores, 338 Phil. 919 (1997).

5. Administrative Case for Dishonesty and Falsification of Official Document Against Noel V. Luna, SC Chief Judicial Staff Officer, A.M. No. 2003-7-SC, 15 December 2003, 418 SCRA 460. 6. Re: Memorandum dated 27 Sept. 1999 of Ma. Corazon M. Molo, OIC, Office of the Administrative Services, Office of the Court Administrator, A.M. No. SCC-00-6-P, 16 October 2003, 413 SCRA 520.

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A.M. No. 04-8-195-MCTC August 18, 2005 Re: FINANCIAL AUDIT ON THE ACCOUNTABILITIES OF MR. RESTITUTO A. TABUCON, JR. EN BANC [A.M. No. 04-8-195-MCTC. August 18, 2005.] Re: FINANCIAL AUDIT ON THE ACCOUNTABILITIES OF MR. RESTITUTO A. TABUCON, JR., FORMER CLERK OF COURT II OF THE MUNICIPAL CIRCUIT TRIAL COURT, ILOG, CANDONI, NEGROS OCCIDENTAL SYLLABUS 1. POLITICAL LAW; ADMINISTRATIVE LAW; COURT PERSONNEL; CLERKS OF COURT; SUPREME COURT CIRCULAR NO. 50-95; VIOLATED WHEN THERE IS A DELAY IN THE REMITTANCE OF CASH COLLECTIONS; EMPLOYEE'S PAYMENT OF THE SHORTAGES WILL NOT FREE HIM FROM THE CONSEQUENCES OF HIS WRONGDOING. Paragraph B (4) of the Supreme Court Circular No. 50-95 mandates that collections from bail bonds, rental deposits, and other fiduciary collections shall be deposited with the Land Bank of the Philippines by the clerk of court concerned, within 24 hours upon receipt. Tabucon admittedly failed to comply with Circular No. 50-95. Even the fact that Tabucon fully paid his shortages will not free him from the consequences of his wrongdoing. Delay in the remittance of cash collections is a clear violation of Circular No. 50-95. 2. ID.; ID.; ID.; ID.; FAILURE TO TURN OVER CASH DEPOSITED WITH HIM ON TIME CONSTITUTES GROSS NEGLECT OF DUTY AND DISHONESTY; IMPOSABLE PENALTY. Safekeeping of public funds entrusted to court personnel is essential to an orderly administration of justice and no protestation of good faith can override the mandatory

nature of the circulars designed to promote full accountability of government funds. A public official's failure to turn over cash deposited with him on time constitutes not just gross negligence in the performance of his duty, but gross dishonesty, if not malversation. Gross neglect of duty and dishonesty are classified as grave offenses under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service. The penalty is dismissal from the service even for the first offense. 3. ID.; ID.; ID.; ID.; MUST BE INDIVIDUALS OF HONESTY, PROBITY AND COMPETENCE CHARGED AS THEY ARE WITH SAFEGUARDING THE INTEGRITY OF THE COURT AND ITS PROCEEDINGS. No position demands greater moral righteousness and uprightness from the occupant than a judicial office. Those entrusted with the dispensation of justice bear a heavy burden of responsibility. Clerks of Court in particular must be individuals of honesty, probity and competence, charged as they are with safeguarding the integrity of the court and its proceedings. The conduct of court personnel, from the highest magistrate to the lowliest clerk, must always be beyond reproach. As sentinels in the administration of justice, they should live up to the strictest standards of honesty and integrity. 4. ID.; ID.; ID.; ID.; PENALTY OF FINE IMPOSED UPON THE RESPONDENT FOR DELAY IN REMITTING HIS COLLECTIONS. While dismissal from the service is no longer possible because Tabucon has compulsorily retired from the service, forfeiture of all his retirement and other benefits may be too harsh under the circumstances. Considering that Tabucon has fully restituted his shortages, a fine of P10,000, twice the amount recommended by the OCA, is in order. AacDHE DECISION CARPIO, J p: The Facts Mr. Restituto A. Tabucon, Jr. ("Tabucon"), former Clerk of Court II of the Municipal Circuit Trial Court of Ilog, Candoni, Negros Occidental, was due to retire from the service on 16 September 2000. To expedite the processing of his clearance, the Fiscal Monitoring Division ("FMD") of the Court Management Office under the Office of the Court Administrator ("OCA") prepared, as early as 10 January 2000, the necessary checklist of documents needed for the audit of Tabucon's accountabilities. The FMD mailed a tracer to Tabucon when he failed to submit the necessary documents on his retirement date. Tabucon submitted the documents for the audit of his accountabilities only on 24 May 2004. TIDHCc FMD made the following findings and observations on Tabucon's accountabilities covering the period from March 1985 to August 2000: 1. Judiciary Development Fund P163,412.30

Collections

Less: Deposits to the SC JDF Account Balance of Accountability/Shortage

133,796.30

P29,616.00

Tabucon restituted this amount which was deposited on 30 June 2004 to the JDF account of the Supreme Court. 2. Clerk of Court General Fund P1,293.60 0.00

Collections

Less: Remittance to the Bureau of Treasury Balance of Accountability/Shortage

P1,293.60

Tabucon restituted this amount which was deposited on 30 June 2004 to the National Treasury. 3. Fiduciary Fund

The Municipal Treasurer's Office of the Municipality of Ilog, Negros Occidental certified that the unwithdrawn bail bonds as of June, 2000 was ONE HUNDRED SIXTY EIGHT THOUSAND EIGHT HUNDRED EIGHTY SIX & 3/100 (P168,886.03). When asked to comment, Tabucon, in his letter dated 22 September 2004, replied that his "salaries and allowances were withheld starting 16 May 1999" up to the end of his service on 16 September 2000. Being the breadwinner of the family, he could no longer feed his family and this prompted him to use the Judiciary Development Fund ("JDF") collections of the last remaining months to feed his family. He was able to submit almost all the documents for his retirement. He restituted his shortages only in May 2004 after he borrowed money from a friend on a 5% interest per month. Tabucon asks for compassion, indulgence and humanitarian consideration. DISaEA The case was referred to OCA for evaluation, report and recommendation. The OCA's Report and Recommendation The OCA opined that although Tabucon restituted the shortages, the delay in the remittance of the JDF collections deprived the Court of the interest it would have earned had the amounts been deposited promptly in a bank as required. The act of misappropriating judiciary funds for personal use constitutes dishonesty and grave misconduct which is punishable by dismissal from the service. The OCA, however, in recommending a penalty of P5,000 fine, considered as mitigating Tabucon's financial distress.

The Court's Ruling It is not clear from the records why Tabucon's salary was withheld in May 1999 or more than a year before his retirement in September 2000. Nonetheless, Tabucon admitted that there was indeed a delay in the remittances of JDF collections because he used the JDF collections "to feed his family." He borrowed money from a friend to restitute the amounts he took from the JDF collections. Paragraph B(4) of the Supreme Court Circular No. 50-95 1 mandates that collections from bail bonds, rental deposits, and other fiduciary collections shall be deposited with the Land Bank of the Philippines by the clerk of court concerned, within 24 hours upon receipt. Tabucon admittedly failed to comply with Circular No. 50-95. Even the fact that Tabucon fully paid his shortages will not free him from the consequences of his wrongdoing. 2 Delay in the remittance of cash collections is a clear violation of Circular No. 50-95. IHcSCA Safekeeping of public funds entrusted to court personnel is essential to an orderly administration of justice and no protestation of good faith can override the mandatory nature of the circulars designed to promote full accountability of government funds. 3 A public official's failure to turn over cash deposited with him on time constitutes not just gross negligence in the performance of his duty, but gross dishonesty, if not malversation. 4 Gross neglect of duty and dishonesty are classified as grave offenses under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service. 5 The penalty is dismissal from the service even for the first offense. No position demands greater moral righteousness and uprightness from the occupant than a judicial office. Those entrusted with the dispensation of justice bear a heavy burden of responsibility. Clerks of Court in particular must be individuals of honesty, probity and competence, charged as they are with safeguarding the integrity of the court and its proceedings. The conduct of court personnel, from the highest magistrate to the lowliest clerk, must always be beyond reproach. As sentinels in the administration of justice, they should live up to the strictest standards of honesty and integrity. 6 While dismissal from the service is no longer possible because Tabucon has compulsorily retired from the service, forfeiture of all his retirement and other benefits may be too harsh under the circumstances. Considering that Tabucon has fully restituted his shortages, a fine of P10,000, twice the amount recommended by the OCA, is in order. WHEREFORE, Mr. Restituto A. Tabucon, Jr., former Clerk of Court II of the Municipal Circuit Trial Court of Ilog, Candoni, Negros Occidental is FINED Ten Thousand Pesos (P10,000.00) for delay in remitting his collections. AcTDaH SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and Garcia, JJ., concur. Footnotes 1. Issued on 11 October 1995.

2. Re: Report on Examination of the Cash and Accounts of the Clerks of Court of RTC & MTC, Vigan, Ilocos Sur, 448 Phil. 464 (2003). 3. Re: Misappropriation of the Judiciary Fund Collections by Ms. Juliet C. Banag, Clerk of Court, MTC, Plaridel, Bulacan, A.M. No. P-02-1641, 20 January 2004, 420 SCRA 150. 4. 5. Judge Dondiego v. Cuevas, Jr., 446 Phil. 514 (2003). Dated 31 August 1999.

6. Report on the Financial Audit Conducted at the Municipal Trial Courts of Bani, Alaminos, and Lingayen, in Pangasinan, A.M. No. 01-2-18-MTC, 05 December 2003, 417 SCRA 106.

Copyright 2005

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G.R. Nos. 160929-31 August 16, 2005 RENE P. PONDEVIDA vs. SANDIGANBAYAN, ET AL. SECOND DIVISION [G.R. Nos. 160929-31. August 16, 2005.] RENE P. PONDEVIDA, petitioner, vs. THE HON. SANDIGANBAYAN (Third Division) and THE PEOPLE OF THE PHILIPPINES, respondents. Mendoza Arzaga-Mendoza Law Firm for petitioner. SYLLABUS 1. CRIMINAL LAW; MALVERSATION; ESSENTIAL ELEMENTS. Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property.

The essential elements common to all acts of malversation under Article 217 of the Revised Penal Code are the following: (a) That the offender be a public officer. (b) That he had the custody or control of funds or property by reason of the duties of his office. (c) That those funds or property were public funds or property for which he was accountable. (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. CaAcSE 2. ID.; ID.; ID.; AN ACCOUNTABLE OFFICER MAY BE CONVICTED THEREOF EVEN ABSENT DIRECT PROOF OF MISAPPROPRIATION SO LONG AS THERE IS EVIDENCE OF SHORTAGE IN HIS ACCOUNT WHICH HE IS UNABLE TO EXPLAIN. A public officer may be liable for malversation even if he does not use public property or funds under his custody for his personal benefit, but consents to the taking thereof by another person, or, through abandonment or negligence, permitted such taking. The prosecution is burdened to prove beyond reasonable doubt, either by direct or circumstantial evidence, that the public officer appropriated, misappropriated or consented or through abandonment or negligence, permitted another person to take public property or public funds under his custody. Absent such evidence, the public officer cannot be held criminally liable for malversation. Mere absence of funds is not sufficient proof of conversion; neither is the mere failure of the public officer to turn over the funds at any given time sufficient to make even the prima facie case. In fine, conversion must be proved. However, an accountable officer may be convicted of malversation even in the absence of direct proof of misappropriation so long as there is evidence of shortage in his account which he is unable to explain. 3. ID.; ID.; ID.; PRIMA FACIE PRESUMPTION OF CONNIVANCE, WHEN ARISES; RESTITUTION OF THE AMOUNT AFTER THE CONSUMMATION OF THE CRIME, NOT A GROUND FOR ACQUITTAL; CASE AT BAR. Demand to produce public funds under a public officer's custody is not an essential element of the felony. The law creates a prima facie presumption of connivance if the public officer fails to produce public funds under his custody upon demand therefor. However, the presumption may be rebutted by evidence that the public officer had fully accounted for the alleged cash shortage. In the present case, the petitioner does not dispute the fact that, by his overt acts of drawing and issuing the checks to the order of Victor Grande, Glenn Celis and Norma Tiu, they were able to encash the checks. Even if the petitioner received P893,860.67 from them on June 15, 1997, a day after the checks were encashed, by then, the felonies of malversation had already been consummated. Case law has it that the individuals' taking of funds is completed and is consummated even if the severance of the funds from the possession was only for an instant. Restitution of the said amount after the consummation of the crimes is not a ground for acquittal of the said crimes. SAcaDE DECISION CALLEJO, SR., J p:

On April 11, 2003, the Sandiganbayan rendered judgment in Criminal Cases Nos. 24375 to 24377 convicting petitioner Rene Pondevida, the Municipal Treasurer of Badiangan, Iloilo, of three counts of the complex crime of malversation of public funds through falsification of commercial documents, and sentencing him to suffer the penalty of reclusion perpetua and perpetual special disqualification for each count. The fallo of the decision reads: WHEREFORE, in Criminal Case No. 24375, the Court hereby finds the accused RENE P. PONDEVIDA GUILTY beyond reasonable doubt of the complex offense of Malversation of Public Funds thru Falsification of commercial document defined and penalized under Arts. 48, 171 and 217 of the Revised Penal Code and hereby sentences the said accused to suffer the penalty of RECLUSION PERPETUA and PERPETUAL SPECIAL DISQUALIFICATION in accordance with Art. 31 of the Revised Penal Code and to pay a fine of P213,700.00 and indemnify the Municipal government of Badiangan the sum of P213,700.00, with costs. SaICcT For insufficiency of evidence and for failure of the prosecution to prove their guilt beyond reasonable doubt, accused DONATO M. AMIGABLE and VICTOR N. GRANDE are hereby ACQUITTED of the offense charged in this case, and their bail bonds posted for their provisional liberty are hereby ordered cancelled. In Criminal Case No. 24375, the Court hereby finds the accused RENE P. PONDEVIDA GUILTY beyond reasonable doubt of the complex offense of Malversation of Public Funds through Falsification of commercial document defined and penalized under Arts. 48, 171 and 217 of the Revised Penal Code and hereby sentences the said accused to suffer the penalty of RECLUSION PERPETUA and PERPETUAL SPECIAL DISQUALIFICATION in accordance with Art. 31 of the Revised Penal Code and to pay a fine of P503,287.89 and indemnify the Municipal government of Badiangan the sum of P503,287.89, with costs. For insufficiency of evidence and for failure of the prosecution to prove his guilt beyond reasonable doubt, accused DONATO M. AMIGABLE is hereby ACQUITTED of the offense charged in this case, and the bail bond posted for his provisional liberty is hereby ordered cancelled. In Criminal Case No. 24377, the Court hereby finds the accused RENE P. PONDEVIDA GUILTY beyond reasonable doubt of the complex offense of Malversation of Public Funds thru Falsification of commercial document defined and penalized under Arts. 48, 171 and 217 of the Revised Penal Code and hereby sentences the said accused to suffer the penalty of RECLUSION PERPETUA and PERPETUAL SPECIAL DISQUALIFICATION in accordance with Art. 31 of the Revised Penal Code and to pay a fine of P115,153.55 and indemnify the Municipal government of Badiangan the sum of P115,153.55, with costs. For insufficiency of evidence and for failure of the prosecution to prove his guilt beyond reasonable doubt, accused DONATO M. AMIGABLE is hereby ACQUITTED of

the offense charged in this case, and the bail bond posted for his provisional liberty is hereby ordered cancelled. Considering that accused NORMA B. TIU is still-at-large, let Criminal Case No. 24376 be ARCHIVED until her arrest. 1 The anti-graft court granted the petitioner an extension of time within which to file a motion for reconsideration of its decision, until May 10, 2003. The said motion was filed on May 9, 2003 which the said court resolved to deny on September 5, 2003. The petitioner received a copy of the said resolution on September 16, 2003, and filed his Notice of Appeal 2 on September 23, 2003 "pursuant to paragraph (b), Section 1 of Rule X of the Revised Internal Rules of the Sandiganbayan." In a Resolution 3 dated October 3, 2003, the Sandiganbayan denied due course to the petition for having been filed out of time, thus: FROM THE FOREGOING, the Notice of Appeal shall no longer prosper considering that it was filed out of time and considering further that the Decision rendered in these cases, promulgated on April 11, 2003, in so far as Rene P. Pondevida is concerned, has already become final and executory on September 18, 2003. Atty. Lily V. Biton, the Division Clerk of Court, is ordered to furnish the Director of Prison, National Penitentiary, Muntinlupa City, a copy of this Resolution for his perusal, and to issue the corresponding Commitment Order for Rene P. Pondevida's service of sentence. CHTcSE The Sandiganbayan ruled that under Section 6, Rule 122 of the Revised Rules of Criminal Procedure, Pondevida had only until September 17, 2003 within which to file his notice of appeal, but did so only on September 23, 2003; by then, its decision had become final and executory. The petitioner received a copy of the said resolution on October 14, 2003. On December 15, 2003, he filed his petition for certiorari before this Court, alleging that I THE SANDIGANBAYAN HAS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DENIED THE PETITIONER'S NOTICE OF APPEAL BECAUSE THE NOTICE OF APPEAL HAS BEEN FILED WITHIN THE REGLEMENTARY PERIOD. II PETITIONER WAS DEPRIVED OF DUE PROCESS. III

THE APPEAL IS SUPPORTED BY MERITORIOUS GROUNDS AND THE CASE IS ENTITLED TO BE REVIEWED BY THE APPELLATE COURT. 4 On January 10, 2005, this Court resolved to give due course to the petition and required the Sandiganbayan to elevate the records of the cases. 5 The Sandiganbayan complied and forthwith elevated the records to this Court. The petitioner maintains that his notice of appeal was filed on time. He posits that the Sandiganbayan should have applied Section 1(b), Rule X of its Revised Internal Rules, instead of Section 6, Rule 122 of the Revised Rules of Criminal Procedure. The petitioner argues that since Section 1(b), Rule X of the Revised Internal Rules of the Sandiganbayan does not provide a period within which to appeal a decision or final order rendered by it, the applicable rule is that provided in Section 1(a) of the said Internal Rules, in relation to Rule 45 of the Rules of Civil Procedure. The petitioner avers that under the latter rule, he had fifteen (15) days from receipt of notice of the September 5, 2003 Sandiganbayan Resolution (on September 16, 2003), or until October 1, 2003, within which to file his notice of appeal. Hence, his notice of appeal filed on September 23, 2003 was timely filed. For its part, the Office of the Special Prosecutor (OSP) avers that under Section 1, Rule X of the Internal Rules of the Sandiganbayan, in relation to Rule 45 of the Rules of Court, an appeal from a Sandiganbayan judgment where the accused is sentenced reclusion perpetua or life imprisonment is via petition for review on certiorari; the period for appeal is that provided for in Section 6, Rule 122 of the Revised Rules of Criminal Procedure, thus: 1.c. As aptly stated by petitioner, the method of appeal in this case is by petition for review on certiorari. This, indeed, is confirmed by Section 1, Rule X of the Revised Internal Rules of the Sandiganbayan, i.e., "A party may appeal from a judgment or final order of the Sandiganbayan imposing or affirming a penalty less than death, life imprisonment or reclusion perpetua in criminal cases, and in civil cases, by filing with the Supreme Court a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure." 6 The OSP cited the ruling of this Court in Formilleza v. Sandiganbayan 7 to support its position. The petitioner's contention, that the remedy from the Sandiganbayan decision which sentenced him to reclusion perpetua is via notice of appeal under Section 1(b), Rule X of the Revised Internal Rules of the Sandiganbayan, is correct. The rule reads: (b) Exception. Where the judgment or final order of the Sandiganbayan, in the exercise of its original jurisdiction, imposes the penalty of life imprisonment or reclusion perpetua or where a lesser penalty is imposed involving offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua or life

imprisonment is imposed, the appeal shall be taken by filing a notice of appeal with the Sandiganbayan and serving a copy thereof to the adverse party. EScHDA Under Rule 45 of the Rules of Court, a petition for review on certiorari to this Court (from a Sandiganbayan decision) is proper only where, as provided for in Section 1(a), Rule X of the Revised Internal Rules of the Sandiganbayan, the penalty imposed is less than death, life imprisonment or reclusion perpetua: (a) In General. A party may appeal from a judgment or final order of the Sandiganbayan imposing or affirming a penalty less than death, life imprisonment or reclusion perpetua in criminal cases, and in civil cases, by filing with the Supreme Court a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure. Since Section 1(b), Rule X of the Revised Internal Rules of the Sandiganbayan does not provide for a period to appeal, Section 6, Rule 122 of the Revised Rules of Criminal Procedure shall apply: Sec. 6. Rule 122. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run. This is so because under Section 2, Rule 1 of the Revised Internal Rules of the Sandiganbayan, the Rules of Court applicable to the Regional Trial Court (RTC) and Court of Appeals (CA) shall, likewise, govern all proceedings in the Sandiganbayan insofar as applicable: SEC. 2. Coverage. These Rules shall apply to the internal operations of the Sandiganbayan. The Rules of Court, resolutions, circulars, and other issuances promulgated by the Supreme Court relating to or affecting the Regional Trial Courts and the Court of Appeals, insofar as applicable, shall govern all actions and proceedings filed with the Sandiganbayan. Under Section 6, Rule 122 of the Revised Rules of Criminal Procedure, the petitioner had only until September 17, 2003 within which to file his notice of appeal, considering that he received the September 5, 2003 Resolution of the Sandiganbayan on September 16, 2003. However, he filed his notice of appeal only on September 23, 2003, long after the reglementary period. Hence, the Sandiganbayan acted in accord with its Revised Internal Rules and the Rules of Criminal Procedure in denying the petitioner's appeal.

The ruling of this Court in Formilleza is not applicable in the case at bar. What was involved in that case was Presidential Decree No. 1606, under which the decisions of the Sandiganbayan may be reviewed on petition for certiorari by this Court: Presidential Decree No. 1606, as amended, governs the procedure through which cases originating from the Sandiganbayan are elevated to this Court. Under Section 7 thereof, the decisions and final orders of the Sandiganbayan are subject to review on certiorari by the Supreme Court in accordance with Rule 45 of the Rules of Court. This Court has ruled that only questions of law may be raised in a petition for certiorari under Rule 45, subject to certain rare exceptions. Simply stated, one way through which a decision or final order of the Sandiganbayan can be elevated to the Supreme Court is a Petition for certiorari under Rule 45 and, as a general rule, only questions of law may be raised therein. The Solicitor General cites the case of Peaverde v. Sandiganbayan in support of this view. 8 The petitioner, however, pleads that even if he filed his notice of appeal beyond the period therefor, the Sandiganbayan should have subordinated the rigid application of procedural rules to the attainment of substantial justice; hence, his appeal should have been given due course. After all, he submits, the Court has allowed appeals even if there were delays of four, six and even seven days. 9 The appeal should not be dismissed simply because he followed, in good faith, Section 1(b), Rule X of the Internal Rules of the Sandiganbayan, in relation to Rule 45 of the Rules of Civil Procedure. aIHCSA The petitioner argues that he was sentenced to suffer three counts of reclusion perpetua; it would be the apex of injustice if he would be deprived of his right to appeal and suffer the penalty, considering that the prosecution failed to prove his guilt beyond reasonable doubt. He pleads for the Court to determine whether his appeal has prima facie merit, so as to avoid a travesty of justice. The petitioner avers that in the face of the records, he is not criminally liable for malversation under Article 217 of the Revised Penal Code because (a) the prosecution failed to prove that, before he was charged with malversation complexed with falsification of commercial documents in the Office of the Ombudsman, the Office of the Provincial Auditor had demanded the refund of the amounts of the three checks; and (b) the Sandiganbayan ignored the cash deposit slips issued by the Land Bank of the Philippines (LBP) 10 showing that he deposited P1,533,050.26 on June 15, 1995 which increased to P2,286,550.26 when he made an additional deposit on June 21, 1995, as stated in his letter to the Provincial Auditor, dated June 21, 1995, which included the total amount of the three checks. 11 The petitioner further avers that the charges against him were barred by the decision 12 of the Regional Trial Court (RTC) of Iloilo City in Criminal Case No. 48093 promulgated on April 5, 2002, convicting him of malversation of P1,176,580.59; the P893,890.87, which is the total amount of the three checks subject of the cases

before the Sandiganbayan, is included in the P1,176,580.59 he had deposited with the LBP. The petitioner appended to his petition a copy of the decision of the RTC. Elaborating further, the petitioner avers that it was incumbent on the prosecution to prove that he misappropriated, took away or embezzled the P893,890.87 of the municipality for his own personal use and benefit. He asserts that the prosecution failed to prove that he used the said amount for his personal benefit. The petitioner posits that had the prosecution proved that he received a demand to account for or refund the said amounts, the burden could have shifted on him to prove that he did not misappropriate or take away the said amounts for his personal use or benefit. Indeed, the petitioner notes, Ely Navarro, the leader of the audit team who investigated the matter of the three checks, admitted that the Office of the Provincial Auditor made no such demand. He avers that Navarro even admitted that it was only in the Office of the Ombudsman that such demand was made on him by the team of auditors. The OSP, on the other hand, avers that the perfection of the appeal in the manner and within the period provided by law is not only mandatory, but is also jurisdictional; since the petitioner failed to appeal within the reglementary period, the decision had become final and executory and can no longer be nullified or reversed. On the substantive issues, the OSP avers that demand is not an essential element of malversation. Moreover, the prosecution adduced evidence that the petitioner consented to the taking of municipal funds. The OSP maintains that the petitioner committed the felony of malversation upon the delivery of the checks to the three payees and their encashment of the said checks, and that the refund of the amounts of the checks is not a ground for his acquittal of the crimes charged. Moreover, the petitioner failed to adduce evidence that the total amount of the three checks was part of the P1,108,741.00 he deposited with the LBP on June 15, 1995. The OSP concludes that the decision of the Sandiganbayan is in accord with the evidence and the law. On the timeliness of the petitioner's appeal, the Court agrees with the public respondent's contention that, as a rule, the aggrieved party must perfect his appeal within the period as provided for by law. The rule is mandatory in character. A party's failure to comply with the law will result in the decision becoming final and executory, and, as such, can no longer be modified or reversed. Indeed, the rule admits of exceptions, thus: In the interest of substantial justice, procedural rules of the most mandatory character in terms of compliance, may be relaxed. In other words, if strict adherence to the letter of the law would result in absurdity and manifest injustice or where the merit of a party's cause is apparent and outweighs consideration of non-compliance with certain formal requirements, procedural rules should definitely be liberally construed. A party-litigant is to be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property

on mere technicalities. We, therefore, withhold legal approbation on the RTC decision at bar for its palpable failure to comply with the constitutional and legal mandates thereby denying YAO of his day in court. We also remind all magistrates to heed the demand of Section 14, Article VIII of the Constitution. It is their solemn and paramount duty to uphold the Constitution and the principles enshrined therein, lest they be lost in the nitty-gritty of their everyday judicial work. 13 Considering that the petitioner was sentenced to suffer three counts of reclusion perpetua, the Court ordered the Sandiganbayan to elevate the records of the cases for the Court to ascertain, based on the records, whether the appeal of the petitioner has prima facie merit, or is only an exercise in futility. After all, the petitioner enumerated in his petition the grounds for his appeal from the decision of the Sandiganbayan, and elaborated his arguments in support thereof; the OSP, likewise, submitted its refutation of the petitioner's submissions. cDAISC The Court has meticulously reviewed the records and finds that the petitioner failed to show that his appeal from the decision of the Sandiganbayan is prima facie meritorious. There is no dispute that State Auditors Helen G. Gamboa and Orlino A. Llauderes conducted an audit of the petitioner's cash and accounts for the period ending June 1, 1995. In the course of the said examination, the petitioner submitted the Cash Production Notice and Cash Account Sheet covering the General and Special Education Trust Funds up to the said date. Based on the submitted cashbook, the auditors discovered that the petitioner had a shortage of P2,264,820.92. The petitioner was notified of the said findings on June 1, 1995. On June 19, 1995, the auditors wrote the petitioner, demanding that the latter refund the amount of P2,264,820.92 within 72 hours from notice, and submit an explanation why he incurred the shortage. In response to the letter, the petitioner wrote the Provincial Auditor of Iloilo on June 21, 1995, as follows: June 21, 1995 The Provincial Auditor Province of Iloilo Iloilo City S i r: In compliance with the Memorandum dated June 19, 1995 of the audit team headed by Mrs. Helen Gamboa, State Auditor II of the Provincial Auditor's Office in Badiangan, Iloilo hereunder are my justifications/explanation:

1. That the amount of P722,809.26 was outright deposited with the Land Bank of the Philippines, Iloilo Branch, on June 5, 1995; 2. That there was also a deposit made on June 15, 1995 amounting to P1,108,741.00; 3. That another deposit was done on June 21, 1995 amounting to P455,000.00.

In view of the foregoing circumstances, the delay of my deposit was caused to the late posting of all transaction in the cash book. Another factor is that I was not able to reconcile my bank statement against general ledger accounts. Very truly yours, (Sgd.) RENE PONDEVIDA Municipal Treasurer 14 On the same day, the State Auditors submitted their report to the Provincial Auditor on their examination of the petitioner's cash and accounts. Acting on the said report, Ely Navarro, then Officer-in-Charge of the Office of the Provincial Auditor, wrote the Regional Director of the Department of Finance on June 22, 1995, recommending the petitioner's relief, and the designation of the Assistant Municipal Treasurer as his temporary replacement. The Regional Director approved the recommendation and relieved the petitioner of his duties as Municipal Treasurer. On July 18, 1995, the petitioner wrote the Provincial Auditor, stating that he had already deposited the amount of P2,264,820.92 with the LBP, appending thereto the deposit slips for the said amount. CETDHA On August 9, 1995, Provincial Auditor Dominador Tersol issued a Memorandum to Auditors Navarro and Llauderes to verify whether the P2,264,820.92 had, indeed, been refunded to the municipality as the petitioner claimed in his Letter of June 21, 1995. They were, likewise, directed . . . to conduct an examination on the cash and accounts of accused Pondevida . . . to establish his accountability from 2 June 1995 to 23 June 1995, as a result of his relief as Municipal Treasurer of the said Municipality on June 23, 1995 brought about by his incurrence of a shortage, amounting to P2,264,820.92 as reported by Mrs. Helen Gamboa and Mr. Orlino A. Llauderes in their report dated June 1, 1995. 15 The auditors were also directed to examine the petitioner's check issuances from June 2, 1995 to June 23, 1995, and to determine whether the said payments were covered by legitimate transactions and supported by proper documentation.

In the meantime, Gamboa and Llauderes submitted their report on their audit examination of the petitioner's cash and accounts, appending thereto the deposit slips referred to in the petitioner's June 21, 1995 letter to the Provincial Auditor. In compliance with the Memorandum of the Provincial Auditor, Navarro and Llauderes conducted an examination and verification of the petitioner's claim that he had already refunded the amount of P2,264,820.92. They concluded that the shortage in the petitioner's cash and accounts was only P1,176,580.59. They also examined the check disbursements, and discovered that the petitioner had issued against the municipal funds three checks countersigned by Municipal Mayor Donato Amigable, with the following particulars: Check No. 051750 Date Payee Amount 6/14/95 Roben Mill & Mining P213,700.00

Supply, Iloilo City 051751 6/14/95 Iloilo City 051752 6/14/95 Iloilo City

Glenn Celis Construction, 503,287.89 V.N. Grace Enterprises, 176,902.78

Total P893,890.67 16 ========== The auditors also noted that the checks were indorsed and encashed with the LBP, Iloilo City Branch Office, under Current Account No. 0032-1094-20 of the Municipality of Badiangan, Iloilo, and that Check Nos. 051751 and 051752 were encashed on June 14, 1995, while Check No. 051750 was encashed on June 15, 1995. 17 On August 23, 1995, Navarro and Llauderes sent a Memorandum 18 to Mayor Amigable, informing him that such checks were issued without the corresponding disbursement vouchers and supporting documents; and that Glenn Celis, the proprietor of Glenn Celis Construction, executed an affidavit, stating that he has no transaction with the Municipality of Badiangan, Iloilo, corresponding to the amount of P503,287.89. The mayor was also furnished copies of the three checks. The auditors requested the mayor and the petitioner to comment thereon within five days from notice thereof. However, the auditors did not receive any response from the two.

In a Memorandum 19 to the Provincial Auditor dated November 14, 1995, Navarro and Llauderes made the following recommendations on the petitioner's check disbursements: For defrauding the government, Rene P. Pondevida, Donato M. Amigable and Olivia K. Grande, shall be jointly and severally held liable for malversation of public funds pursuant to Article 217 of the Revised Penal Code of the Philippines. For having erred through omission which caused them injury to the government, Norma B. Tiu and Glenn Celis may be held liable for the same offense. ETIDaH The annexes hereto attached shall be considered to form part of this report. 20 The reports of the auditors were filed with the Ombudsman. After the requisite preliminary investigation, an Information was filed against the petitioner in the RTC of Iloilo City, docketed as Criminal Case No. 48093, for malversation of public funds on the P1,176,580.59 shortage. The inculpatory portion of the Information reads: That in or about the month of June 1995, and for sometime prior thereto, at the Municipality of Badiangan, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Municipal Treasurer of Badiangan, Iloilo, and, as such, was in possession and custody of public funds in the amount of P9,962,401.68, Philippine currency, for which he is accountable by reason of the duties of his office, in such capacity and committing the offense in relation to office, with deliberate intent, with intent to defraud and of gain, did then and there, willfully, unlawfully and feloniously appropriate, take, misappropriate, embezzle and convert to his own personal use and benefit from the said public funds the amount of One Million One Hundred Seventy-Six Thousand Five Hundred Eighty Pesos and Fifty-Nine Centavos (P1,176,580.59) and despite notice and demands made upon him to account for said public funds, he has failed and up to the present time still fails to do so, to the damage and prejudice of the government in the amount aforestated. 21 On November 24, 1997, three Informations for malversation of public funds through falsification of commercial documents relating to the checks disbursements were filed in the Sandiganbayan against Mayor Amigable, the petitioner, and three private individuals, namely, Victor Grande, Norma Tiu and Glenn Celis. The cases were docketed as Criminal Case Nos. 24375 to 24377. The inculpatory averments of the Information in Criminal Case No. 24375 read: That on or about the 14th day of June 1995, or for sometime subsequent thereto, in the Municipality of Badiangan, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, above-named accused DONATO AMIGABLE and RENE PONDEVIDA, public officers, being then the Municipal Mayor and Municipal Treasurer, respectively, of the municipality of Badiangan, Iloilo, in such capacity and committing the offense in relation to office, taking advantage of their official positions, conniving, confederating and mutually helping with each other and with

one VICTOR GRANDE, a private individual and proprietor of V.N. Grande Enterprises, Iloilo City, with deliberate intent, with intent to defraud and to falsify, did then and there, falsify a commercial document consisting of a check of LAND BANK OF THE PHILIPPINES, Iloilo City Branch, bearing Serial No. 051752 dated June 14, 1995, in the amount of P176,902.78, Philippine Currency, with V.N. Grande Enterprises as the payee, by making it appear therein that the municipality of Badiangan has some accounts payable to V.N. Grande Enterprises for some purchases made in the total amount of P176,902.78, Philippine Currency, thereby making untruthful statements in a narration of facts, when, in truth and in fact, as accused very well knew that while there were purchases made at V.N. Grande Enterprises; hence, the municipality of Badiangan has some monetary obligation to said establishment, the same amounted only to P63,659.00 and not P176,902.78, and that such scheme was resorted to by herein accused to be able to obtain the amount of P113,243.78, the difference thereof, once the said documents was falsified, said accused encashed the said LBP check, and with deliberate intent, with intent of gain, did then and there, willfully, unlawfully and feloniously appropriate, misappropriate, take away, embezzle and convert to their own personal use and benefit the amount of P113,243.78, Philippine Currency, and despite notice and demands made upon said accused to account for said public funds, they have failed to do so, to the damage and prejudice of the government. 22 The material averments of the two other Informations are similarly worded, except for the particulars of the checks and the dates of the alleged commission of the crimes. DTcASE On April 5, 2002, the RTC rendered judgment in Criminal Case No. 48093 finding the petitioner guilty of malversation. The dispositive part of the judgment reads: Based on the foregoing, We hereby decree that the Prosecution established the guilt of the accused Rene P. Pondevida beyond reasonable doubt for violation of Article 217 of the Revised Penal Code. We hereby order that accused Rene P. Pondevida suffers the penalty of imprisonment ranging from 16 years, 5 months and 11 days to 18 years, 2 months and 20 days of Reclusion Temporal pursuant to Article 217 of the Revised Penal Code in relation to paragraph 1, Article 64, RPC, and in further relation to the Indeterminate Sentence Law (Act No. 4225). Accused Rene P. Pondevida is ordered to be perpetually disqualified to be employed in the government of the Republic of the Philippines or any of its agencies or instrumentalities for a position that requires handling and/or disposition of public funds pursuant to Article 217 of the Revised Penal Code. Likewise, pursuant to Article 217 of the Revised Penal Code in relation to the Indeterminate Sentence Law a fine equivalent to one-half of the amount he

malversed or P588,190.295 is ordered imposed upon the accused Rene P. Pondevida without subsidiary imprisonment in case of insolvency. SO ORDERED. 23 As gleaned from the evidence of the prosecution before the Sandiganbayan, Norma Tiu encashed LBP Check No. 051750 on June 15, 1995, but when she realized that she had no legitimate transaction with the municipality, she turned over P213,700.00 to the petitioner on the said date. Glenn Celis encashed LBP Check No. 051751 on June 14, 1995 but gave the P503,287.89 to the petitioner when the latter demanded that the amount be turned over to him, on his claim that there was "an erroneous application for payment." 24 Victor Grande endorsed LBP Check No. 051752 but his godson, Engr. Jesus Violeta, Jr., returned P115,153.55 to the petitioner on June 14, 1995 and applied the difference of P61,745.78 to the payment of materials supplied to the municipality. 25 It also appears, based on the evidence of Mayor Amigable, that the petitioner inveigled him into signing the three checks. This can also be gleaned from the petitioner's affidavit: That I further attest that then Mayor DONATO AMIGABLE is completely innocent of the charges against him considering that the three (3) checks which I asked Ex-Mayor Amigable to sign were intended to pay for the salaries and wages of the employees of the Municipality of Badiangan for the period until June 30, 1995 at which time ExMayor Amigable will step down from office; As Ex-Mayor Donato Amigable was then winding up his term of office after having served as Mayor for 131/2 years, I requested him to sign the three (3) checks now subject matter of this case with my guarantee that the three (3) checks will be used for the salaries and wages of Municipal employees; That Ex-Mayor Donato Amigable had nothing to do with the transactions I made with the three (3) suppliers and I hereby confirm that Ex-Mayor Amigable has not profited a single centavo from the said three (3) checks or the transactions which arose out of the said checks. TAcCDI That I hereby further confirm the innocence of Ex-Mayor Donato Amigable to the charges which were filed against him. 26 Malversation is defined and penalized in Article 217 of the Revised Penal Code, which reads: Art. 217. Malversation of public funds or property Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall, otherwise,

be guilty of the misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed 200 pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos. 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property. The essential elements common to all acts of malversation under Article 217 of the Revised Penal Code are the following: (a) That the offender be a public officer.

(b) That he had the custody or control of funds or property by reason of the duties of his office. (c) That those funds or property were public funds or property for which he was accountable. (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. A public officer may be liable for malversation even if he does not use public property or funds under his custody for his personal benefit, but consents to the taking thereof

by another person, or, through abandonment or negligence, permitted such taking. HEacAS The prosecution is burdened to prove beyond reasonable doubt, either by direct or circumstantial evidence, that the public officer appropriated, misappropriated or consented or through abandonment or negligence, permitted another person to take public property or public funds under his custody. Absent such evidence, the public officer cannot be held criminally liable for malversation. 27 Mere absence of funds is not sufficient proof of conversion; neither is the mere failure of the public officer to turn over the funds at any given time sufficient to make even the prima facie case. In fine, conversion must be proved. 28 However, an accountable officer may be convicted of malversation even in the absence of direct proof of misappropriation so long as there is evidence of shortage in his account which he is unable to explain. 29 Demand to produce public funds under a public officer's custody is not an essential element of the felony. The law creates a prima facie presumption of connivance if the public officer fails to produce public funds under his custody upon demand therefor. 30 However, the presumption may be rebutted by evidence that the public officer had fully accounted for the alleged cash shortage. In the present case, the petitioner does not dispute the fact that, by his overt acts of drawing and issuing the checks to the order of Victor Grande, Glenn Celis and Norma Tiu, they were able to encash the checks. Even if the petitioner received P893,860.67 from them on June 15, 1997, a day after the checks were encashed, by then, the felonies of malversation had already been consummated. Case law has it that the individuals' taking of funds is completed and is consummated even if the severance of the funds from the possession was only for an instant. 31 Restitution of the said amount after the consummation of the crimes is not a ground for acquittal of the said crimes. On the petitioner's claim that he deposited the amount of P893,890.67 with the LBP on June 15, 1995 as evidenced by the deposit slips, 32 the Sandiganbayan declared: Accused Pondevida asserted that he had deposited these amounts in the account of the Municipality of Badiangan with the bank. But this assertion of the accused is without evidentiary support of any kind. No document or paper such as deposit slip or certificate of deposit from the bank has been presented by the accused. 33 The Sandiganbayan is correct. The petitioner was burdened to prove that the said amount was part of the deposit he made with the LBP on June 15, 1997, but he failed to do so. Indeed, instead of buttressing his petition, the decision of the RTC in Criminal Case No. 48093 militates against his case. It appears that on June 15, 1995, the petitioner deposited P1,108,741.00 in cash. 34 However, there is no indication whatsoever in the deposit slips that the P893,890.67 refunded by Grande, Celis and

Tiu on the same day was part of the P1,108,741.00. Moreover, the three checks issued by the petitioner were drawn against Account No. 0032-1094-20, that of the municipality and relating to its general fund. However, of the P1,108,741.00 the petitioner deposited on June 15, 1995, P192,000.00 was deposited in the municipality's general fund, and the rest in the special education fund. This is gleaned from the decision of the RTC in Criminal Case No. 48093, which was, in turn, based on the petitioner's explanation to the finding of Gamboa and Llauderes that the petitioner had a P2,264,820.92 shortage: Mr. Pondevida submitted an explanation of his shortage together with the deposit slips on the deposit he made with the Land Bank of the Philippines, Iloilo City, totalling P2,288,550.26 itemized as follows: Date Deposited Fund LBP Account No. 0032-1094-20 Amount P722,809.26 192,800.00

6/5/95General Fund 6/15/95 6/15/95 6/21/95 6/15/95

General Fund SEF SEF

0032-1094-20 230,800.00 455,000.00

0032-1251-74 0032-1251-74

Trust Fund

0032-1251-74

685,141.00

Total Deposits P2,286,550.26 35

=========== In fine, it was the petitioner's position in Criminal Case No. 48093 that the total deposit of P2,286,550.26 on June 5, 15 and 21, 1995 with the LBP was to be credited to him, that is, against the P2,264,820.92 shortage on his cash and account. This is also gleaned from the petitioner's letter to the Provincial Auditor dated June 21, 1995, in reply to Gamboa's and Llauderes's Memorandum of June 14, 1995, requiring him to explain the P2,264,820.92 shortage. The petitioner did not claim in the said letter that the said deposit should be credited to his check disbursements of P893,890.67. IcSADC Indeed, as of June 15, 1995, the petitioner was not yet subject to audit examination for his check disbursements. It was only on August 23, 1995 that the Provincial Auditor ordered Navarro and Llauderes to conduct an examination of the said check disbursements. On the petitioner's claim that the charges against him in the court a quo were barred by the RTC decision in Criminal Case No. 48093, the same is belied by no less than the said ruling. The trial court declared that the P1,176,580.59 shortage subject

matter of the said case was different from the petitioner's check disbursements subject matter of the cases in the Sandiganbayan: The evidence further showed that the three Land Bank checks issued by the accused Pondevida to V.N. Grande Enterprises, Iloilo City, Check No. 051752 dated 14 June 1995 P176,902.98, Exhibit "X"; Glen Celis Construction, Iloilo City, Check No. 051751 dated 14 June 1995 P503,287.89, Exhibit "X-1"; Roben Mill and Mining Supply, Check No. 05[1]750 14 June 1995 P213,700.00, were all issued without the prescribed supporting documents. These aforesaid exhibits are now the subject of a criminal case before the Sandiganbayan Criminal Case No. 243-75-76-77 for Malversation of Public Funds thru Falsification of Commercial Documents captioned People of the Philippines versus Rene P. Pondevida and Donato Amigable pending at the Third Division, Sandiganbayan. 36 Hence, the judgment of the RTC in Criminal Case No. 48093 is not a bar to the petitioner's prosecution and conviction in the Sandiganbayan. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The assailed Resolution dated October 3, 2003 and Decision dated April 11, 2003 are AFFIRMED. Costs against the petitioner. SO ORDERED. Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. Rollo, pp. 103-105. Rollo, pp. 188-191. Records, pp. 1267-1270. Rollo, pp. 11-12. Id. at 327. Rollo, p. 274. No. L-75160, 18 March 1988, 159 SCRA 1. Formilleza v. Sandiganbayan, supra, p. 7.

9. Republic of the Philippines v. Court of Appeals, Nos. L-31303-04, 31 May 1978, 83 SCRA 453; Castro v. Court of Appeals, No. L-47410, 29 July 1983, 123 SCRA 782; Cortes v. Court of Appeals, No. L-79010, 23 May 1988, 161 SCRA 444. 10. Exhibits "6" and "7."

11. 12. 13. 221. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 556. 29. 30. 31. 32. 33. 34. 35.

Exhibit "1." Rollo, pp. 223-236. Yao v. Court of Appeals, G.R. No. 132428, 24 October 2000, 344 SCRA 202, Records, p. 747. Rollo, p. 227. Records, p. 748. Records, p. 748. Id. at 753. Id. at 748-752. Id. at 752. Rollo, p. 162. Rollo, pp. 65-66. Rollo, pp. 235-236. Id. at 84. Exhibit "8-A." Records, pp. 549-550. Madarang v. Sandiganbayan, G.R. No. 112314, 28 March 2001, 355 SCRA 525. Agullo v. Sandiganbayan, G.R. Nos. 112761-65, 3 February 1997, 361 SCRA People v. Pepito, G.R. No. 132926, 20 July 2001, 267 SCRA 358. Madarang v. Sandiganbayan, supra. See People v. Salvilla, G.R. No. 86163, 26 April 1990, 184 SCRA 671. Exhibit "6." Rollo, p. 94. Exhibit "6." Rollo, p. 232.

36.

Rollo, p. 231.

Copyright 2005

C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 156474 August 16, 2005 PESANE ANIMAS MONGAO, ET AL. vs. PRYCE PROPERTIES CORP. SECOND DIVISION [G.R. No. 156474. August 16, 2005.] PESANE ANIMAS MONGAO, joined by her husband BENHUR MONGAO, petitioners, vs. PRYCE PROPERTIES CORPORATION, respondent. Matunog & Associates for petitioners. Ramon R. Torralba, Jr. for respondent. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT ON THE PLEADINGS; WHEN PROPER. Judgment on the pleadings is governed by Section 1, Rule 34 of the 1997 Rules of Civil Procedure, essentially a restatement of Section 1, Rule 19 of the 1964 Rules of Court then applicable to the proceedings before the trial court. Section 1, Rule 19 of the Rules of Court provides that where an answer "fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading." The answer would fail to tender an issue, of course, if it does not comply with the requirements for a specific denial set out in Section 10 (or Section 8) of Rule 8; and it would admit the material allegations of the adverse party's pleadings not only where it expressly confesses the truthfulness thereof but also if it omits to deal with them at all. Now, if an answer does in fact specifically deny the material averments of the complaint in the manner indicated by said Section 10 of Rule 8, and/or asserts affirmative defenses (allegations of new matter which, while admitting the material allegations of the complaint expressly or impliedly, would nevertheless prevent or bar recovery by the plaintiff in accordance with Sections 4 and 5 of Rule 6, a judgment on the pleadings would naturally not be proper. Thus, there is joinder of issues when the answer makes a specific denial of the material allegations in the complaint or asserts affirmative defenses which would bar recovery by the plaintiff. Where there is proper joinder of issues, the trial court is barred from rendering judgment based only on the pleadings filed by the parties and must conduct proceedings for the reception of evidence. On the other hand, an answer fails to tender an issue where the allegations admit the allegations in support of the plaintiff's cause of action or fail to address

them at all. In either case, there is no genuine issue and judgment on the pleadings is proper. 2. ID.; ID.; ID.; NOT PROPER WHEN THE ANSWER ASSERTS AFFIRMATIVE DEFENSES. As earlier stated, an answer may allege affirmative defenses which may strike down the plaintiff's cause of action. An affirmative defense is one which is not a denial of an essential ingredient in the plaintiff's cause of action, but one which, if established, will be a good defense i.e., an "avoidance" of the claim. Affirmative defenses include fraud, statute of limitations, release payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. When the answer asserts affirmative defenses, there is proper joinder of issues which must be ventilated in a full-blown trial on the merits and cannot be resolved by a mere judgment on the pleadings. Allegations presented in the answer as affirmative defenses are not automatically characterized as such. Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action. TCIHSa 3. ID.; ID.; ID.; PROPER ABSENT MATERIAL ALLEGATION IN THE ANSWER TO RESIST PLAINTIFF'S CLAIM; CASE AT BAR. In essence, respondent corporation justifies its refusal to tender payment of the purchase price solely to petitioner Mongao by alleging that the latter was a mere trustee and not the beneficial owner of the property subject of the sale and therefore not the proper party to receive payment. Such defense cannot prevent petitioners from seeking the rescission of the contract of sale. The express terms of the Memorandum of Agreement, the genuineness and due execution of which are not denied, clearly show that the contract of sale was executed only between petitioner Mongao and respondent corporation. Where there is an apparent repudiation of the trust by petitioner Mongao, such claim or defense may properly be raised only by the parties for whose benefit the trust was created. Respondent corporation cannot assert said defense in order to resist petitioners' claim for rescission where it has been sufficiently shown by the allegations of the complaint and answer that respondent corporation has breached its contractual obligation to petitioners. There being no material allegation in the answer to resist petitioners' claim, the trial court correctly rendered judgment based on the pleadings submitted by the parties. 4. CIVIL LAW; OBLIGATIONS AND CONTRACTS; SALES; CONTRACT OF SALE; RESCISSION THEREOF PROPER IN CASE AT BAR. The Court of Appeals enumerated certain factual controversies, which it believed can only be resolved after presentation of evidence, and these are: (1) whether or not petitioner Mongao executed the Deed of Absolute Sale in favor of respondent corporation, and (2) whether or not petitioner Mongao is the sole owner of the subject property. The Court finds that the determination of these factual questions is immaterial to the resolution of the main issue of whether or not there is a valid cause for rescission in light of respondent's implied admissions of certain allegations and the weakness of the affirmative defenses in the answer. At the risk of being repetitious, respondent

corporation's answer admitted that there was a perfected contract of sale between respondent and petitioner Mongao and that respondent corporation refused to tender payment of the purchase price solely to petitioner Mongao. These admissions clearly make out a case for rescission of contract. 5. ID.; ID.; OBLIGATIONS; EXTINGUISHMENT OF OBLIGATION; CONSIGNATION; FILING OF A FORMAL COMPLAINT FOR TENDER OF PAYMENT AND CONSIGNATION, A REQUISITE. On the peripheral issue of whether or not there was proper consignation of the purchase price with the RTC of Davao City, the Court adopts the trial court's finding that respondent corporation did not follow the procedure required by law. . . . The records reveal that respondent corporation did not file any formal complaint for consignation but merely deposited the check with the Clerk of Court. A formal complaint must be commenced with the trial court to provide the proper venue for the determination if there is a valid tender of payment. Strictly speaking, without the institution of an action for tender of payment and consignation, the trial court cannot rule on whether or not respondent was justified in not effecting payment solely to petitioner Mongao. cSaCDT DECISION TINGA, J p: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure assailing the Decision 1 of the Court of Appeals in CA-G.R. CV No. 52753, which reversed the trial court's judgment on the pleadings and remanded the case thereto for trial on the merits, and the Resolution 2 denying petitioners' motion for reconsideration. The instant petition originated from a complaint for rescission and damages filed on February 14, 1995 by petitioners, Spouses Pesane Animas Mongao (hereafter referred to as petitioner Mongao) and Benhur Mongao, against respondent Pryce Properties Corporation before the Regional Trial Court (RTC) in General Santos City. 3 The complaint alleged that petitioner Mongao and respondent corporation executed a Memorandum of Agreement 4 on December 20, 1993, wherein the former agreed to sell to the latter for the total price of Five Million Twenty-Eight Thousand Eight Hundred Pesos (P5,028,800.00) a parcel of land in Polomolok, South Cotabato covered by Transfer Certificate of Title (TCT) No. T-22186 5 registered in the name of petitioner Mongao only. In accordance with the terms and conditions of the Memorandum of Agreement, respondent corporation allegedly paid petitioners the sum of Five Hundred Fifty Thousand Pesos (P550,000.00) as earnest money considered as part of the purchase price. The complaint further alleged that after considerable delay, respondent corporation offered to pay the balance of the purchase price by issuing a check payable to petitioner Mongao and her mother, Nellie Animas, which the former rejected. Allegedly, respondent corporation

continuously refused to heed petitioners' written and oral demands to pay the balance solely to petitioner Mongao. cISAHT The complaint also denied that petitioner Mongao executed a Deed of Absolute Sale dated November 15, 1994 in favor of respondent corporation, the registration of which caused the cancellation of TCT No. T-22186 in the name of petitioner Mongao and the issuance of TCT No. T-62944. In addition to petitioners' prayer for the rescission of the Memorandum of Agreement and the Deed of Absolute Sale and the forfeiture of the earnest money paid by respondent corporation, the complaint also asked for the award of moral and exemplary damages and attorney's fees. Respondent corporation filed an answer and refuted petitioners' allegations with a narration of the factual antecedents leading to the perfection of the contract of sale. 6 It claimed that sometime in 1993, a certain Pedro Animas IV approached Sonito N. Mole, an officer of respondent corporation, and negotiated the sale of properties belonging to the Animas family which were on the verge of being foreclosed by the bank. Respondent corporation further claimed that the subject property was one of the two parcels of land it selected for purchase. Said property covered by TCT No. T22186 allegedly belonged to petitioner Mongao's parents but was registered in petitioner Mongao's name as a trustee thereof. Respondent corporation averred that the true agreement between respondent corporation and the Animas family was for the former to purchase the two parcels of land belonging to the late Pedro Animas, father of petitioner Mongao. It admitted the execution of the Memorandum of Agreement but qualified that respondent corporation did not pay the earnest money directly and solely to petitioner Mongao. Said earnest money was allegedly part of the amount directly paid by respondent corporation to the Development Bank of the Philippines in order to redeem certain properties of the Animas family which were foreclosed and sold at a public auction. Respondent corporation averred that petitioner Mongao and Pedro Animas, Jr., the registered owners of the subject properties, executed simultaneously the corresponding Deed of Sale and Memorandum of Agreement after respondent corporation's representative delivered the checks to the bank as payment for redemption of the properties. Controversy arose after respondent corporation had allegedly manifested its intent to complete payments but petitioner Mongao demanded that payment be made to her alone to the exclusion of the rest of the Animas family. Respondent corporation admitted issuing a check in the amount of Three Million Three Hundred Fifty-Three Thousand, Three Hundred Fifty-Seven Pesos and Eighty-Four Centavos (P3,353,357.84) payable to the order of petitioner Mongao and her mother, Nellie Animas, which was however refused by petitioner Mongao. The answer also admitted that due to the demands of both petitioner Mongao and the Animas family, respondent corporation was constrained to deposit the payment with the Clerk of Court of the RTC of Davao City. By way of a compulsory counterclaim,

respondent corporation prayed that petitioners be adjudged liable for attorney's fees for their hasty and unjustified institution of the case. Petitioners moved for judgment on the pleadings on the ground that the answer admitted the material allegations of the complaint and, therefore, failed to tender an issue. 7 In particular, the answer allegedly admitted the existence of the contract of sale and respondent corporation's refusal to satisfy the unpaid balance of the purchase price despite demand. Petitioners contended that respondent corporation cannot avoid rescission by raising the defense that it contracted with the Animas family and not solely with petitioner Mongao. Petitioners belied respondent corporation's claim for consignation by attaching a letter from the Office of the Clerk of Court of the RTC of Davao City to the effect that the court could not act on petitioners' motion to deny consignation because the deposit was transmitted through a mere letter, hence, the case was not raffled to a particular branch of the court. 8 Respondent corporation opposed petitioners' motion for judgment on the pleadings, arguing that two material allegations in the complaint, namely: that petitioner Mongao did not execute the Deed of Sale and that petitioner Mongao was the owner of the subject property, were disputed in the answer. 9 The trial court granted petitioners' motion for judgment on the pleadings and considered the case submitted for decision. The trial court rendered a Decision 10 on November 13, 1995. The dispositive portion thereof reads: WHEREFORE, premises considered, the Memorandum of Agreement dated 20 December 1993, as well as the Deed of Absolute Sale entered into between plaintiff Pesane Animas Mongao and defendant Pryce Properties Corporation dated November 15, 1994, are hereby declared rescinded. As a consequence thereof, Pryce Properties Corporation is directed to execute a Deed of Reconveyance of the property covered by TCT No. T-62944 in favor of Pesane Animas and to pay attorney's fees in the amount of P50,000.00 as well as costs of suit, by way of damages. On the other hand plaintiff Pesane Animas Mongao is likewise directed to return to the defendant Pryce Properties Corporation, what she had received by virtue of the contract in the amount of P1,675,442.16, a portion of which may be compensated to the damages herein awarded pursuant to Article 1278 of the New Civil Code. SO ORDERED. 11 With the adverse decision, respondent corporation elevated the case to the Court of Appeals, which reversed the trial court's Decision and remanded the case for trial on the merits through its Decision promulgated on March 22, 2001. 12 On the main issue of whether or not judgment on the pleadings was proper, the Court of Appeals ruled in the negative, finding that there were actual issues raised in the answer requiring the presentation and assessment of evidence. The appellate court opined that aside

from the amount of damages claimed by both parties, the following were also put in issue: (1) the genuineness of the Deed of Sale purportedly executed by petitioner Mongao, and (2) the nature of petitioner Mongao's title to the subject property. The Court of Appeals also ruled against the trial court's interference with the consignation case pending before the RTC of Davao City but did not find petitioners guilty of forumshopping in filing the action for rescission despite the pendency of the consignation case with the RTC of Davao City. DcCASI Petitioners moved for the reconsideration of the Court of Appeals' Decision but the same was denied in a Resolution dated November 25, 2002. Hence, this petition for review, raising the following issues: A. WHETHER OR NOT THE MERE DEPOSIT OF A CHECK PAYABLE TO TWO PERSONS, ONE OF WHOM IS A THIRD PARTY AND/OR A STRANGER TO THE TRANSACTION, AND THE RELEASE OF WHICH IS SUBJECT TO CERTAIN CONDITIONS CONSTITUTES CONSIGNATION. B. WHETHER OR NOT JUDGMENT ON THE PLEADINGS IS PROPER IN THIS CASE. 13

The main issue for this Court's resolution is the propriety of the trial court's judgment on the pleadings on the ground that respondent corporation's allegation did not tender an issue. Judgment on the pleadings is governed by Section 1, Rule 34 of the 1997 Rules of Civil Procedure, essentially a restatement of Section 1, Rule 19 of the 1964 Rules of Court then applicable to the proceedings before the trial court. Section 1, Rule 19 of the Rules of Court provides that where an answer "fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading." The answer would fail to tender an issue, of course, if it does not comply with the requirements for a specific denial set out in Section 10 14 (or Section 8) 15 of Rule 8; and it would admit the material allegations of the adverse party's pleadings not only where it expressly confesses the truthfulness thereof but also if it omits to deal with them at all. 16 Now, if an answer does in fact specifically deny the material averments of the complaint in the manner indicated by said Section 10 of Rule 8, and/or asserts affirmative defenses (allegations of new matter which, while admitting the material allegations of the complaint expressly or impliedly, would nevertheless prevent or bar recovery by the plaintiff) in accordance with Sections 4 17 and 5 18 of Rule 6, a judgment on the pleadings would naturally not be proper. 19 Thus, there is joinder of issues when the answer makes a specific denial of the material allegations in the complaint or asserts affirmative defenses which would bar recovery by the plaintiff. Where there is proper joinder of issues, the trial court is barred from rendering judgment based only on the pleadings filed by the parties and must conduct proceedings for the reception of evidence. On the other hand, an

answer fails to tender an issue where the allegations admit the allegations in support of the plaintiff's cause of action or fail to address them at all. In either case, there is no genuine issue and judgment on the pleadings is proper. caADSE Petitioners' action for rescission is mainly based on the alleged breach by respondent corporation of its contractual obligation under the Memorandum of Agreement when respondent refused to effect payment of the purchase price solely to petitioner Mongao. The complaint pertinently alleged the following: 4. Plaintiff Pesane Animas Mongao is the registered owner in fee simple of a parcel of land more particularly described as: . . . . 5. In a Memorandum of Agreement dated 20 December 1993 and entered in the Notarial Register of Atty. Rosalio C. Cario, as Document No. 75, Page No. 15, Book No. II, Series of 1993; plaintiff Pesane Animas Mongao agreed to sell the aforesaid parcel of land to defendant (copy of the Memorandum of Agreement is attached as Annex B); 6. As earnest money, defendant paid to plaintiff Pesane Animas Mongao, and in her sole name, the amount of P550,000.00; xxx xxx xxx 20

On the other hand, nothing from the allegations in respondent corporation's answer makes out a proper joinder of issues. Petitioners' cause of action for rescission is founded mainly on a perfected contract of sale allegedly entered into between petitioners and respondent corporation as embodied in the Memorandum of Agreement attached to the complaint. First, the allegations in respondent corporation's answer do not make out a specific denial that a contract of sale was perfected between the parties. Second, respondent corporation does not contest the due execution and/or genuineness of said Memorandum of Agreement. In fact, paragraph 1 of the answer categorically admits paragraph 5 of the complaint, thus: 1. Paragraphs 1, 2, 3, and 5 of the Complaint are admitted. 21

Paragraph 5 of the complaint referred to above states: 5. In a Memorandum of Agreement dated 20 December 1993 and entered in the Notarial Register of Atty. Rosalio C. Cario, as Document No. 75, Page No. 15, Book No. II, Series of 1993; plaintiff Pesane Animas Mongao agreed to sell the aforesaid parcel of land to defendant (copy of the Memorandum of Agreement is attached as Annex B); 22 As to how respondent corporation allegedly breached its contractual obligation under the Memorandum of Agreement is illustrated by the following averments in the complaint:

7. Subsequent to the execution of the Memorandum of Agreement, defendant corporation after considerable delay offered to pay the balance of the purchase price net of still undetermined and undisclosed deductions, this time in the name of both plaintiff Pesane Animas Mongao and that of her mother; 8. Plaintiff Pesane Animas Mongao justifiably refused to accept payment under the conditions unilaterally imposed by defendant corporation; 9. Several demands, both written and oral, were conveyed by plaintiffs to defendant corporation to pay the balance immediately, directly and solely to plaintiff Pesane Animas Mongao, but defendant corporation, in patent breach of its contractual obligation, refused; 23 The answer denied the aforequoted allegations and asserted that there was an earlier understanding between the parties, the substance of which was not clearly expressed in the following averments: 4. Paragraph 7 of the Complaint is denied, the truth of the matter being those stated in the Special and Affirmative Defenses in this Answer. 5. Paragraph 8 of the Complaint is denied, the truth of the matter being that plaintiff's refusal to accept payment was not justified and was contrary to the earlier understanding and agreement of the parties. 6. Paragraph 9 of the Complaint is admitted, except for the allegation that defendant was in "patent breach of its contractual obligation, the truth of the matter being that defendant's refusal was in accordance with its contractual obligation. 24 Respondent corporation offered the affirmative defense that the separate demands of petitioner Mongao and the Animas family compelled it to issue the check payable to both petitioner Mongao and her mother, to wit: 16. That in so far as Pedro Animas, Jr., was concerned, he did not object to payment being made to his brother and/or mother, but with respect to plaintiff Pesane Animas Mongao, it was then that the controversy began since plaintiff now demanded that payment be given to her alone to the exclusion of the rest of the Animas family. 17. That in order to play safe, defendant issued the check in the amount of P3,353,357.84, payable to the order of plaintiff "Pesane Animas Mongao" and the surviving matriarch of the Animas Family in the person of "Nellie vda. de Animas". Plaintiff resented this arrangement and refused to accept payment unless the check was made out to her alone. 18. That since defendant was now receiving demands from plaintiff and the rest of the Animas Family (through Nellie vda. de Animas), defendant became confused on which was the proper party to receive payment and, on January 18, 1995, the amount

of P3,353,357.84 was deposited by the defendant by way consignment with the Clerk of Court of the Regional Court, 11th Judicial Region. 25 Effectively, the aforequoted averments imply an admission by respondent corporation that it effected payment contrary to the express terms of the contract of sale. Nowhere in the terms of the Memorandum of Agreement does it state that the payment of the purchase price be tendered to any person other than petitioner Mongao. The averment virtually admits petitioners' allegation that respondent corporation committed a breach of its contractual obligation to petitioners and supports their cause of action for rescission. Indeed, the drawing of the check payable to the order of petitioner Mongao and Nellie Vda. de Animas would deprive petitioner Mongao of the exclusive benefit of the payment, thereby sharply deviating from the terms of the contract of sale. TAaHIE As earlier stated, an answer may allege affirmative defenses which may strike down the plaintiff's cause of action. An affirmative defense is one which is not a denial of an essential ingredient in the plaintiff's cause of action, but one which, if established, will be a good defense i.e. an "avoidance" of the claim. 26 Affirmative defenses include fraud, statute of limitations, release payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession and avoidance. When the answer asserts affirmative defenses, there is proper joinder of issues which must be ventilated in a full-blown trial on the merits and cannot be resolved by a mere judgment on the pleadings. Allegations presented in the answer as affirmative defenses are not automatically characterized as such. Before an allegation qualifies as an affirmative defense, it must be of such nature as to bar the plaintiff from claiming on his cause of action. For easy reference, respondent corporation's affirmative defenses shall be laid out in full: SPECIAL AND AFFIRMATIVE DEFENSES 9. That, sometime in the latter half of 1993, defendant's officer, Sonito N. Mole, was approached by a real estate broker who introduced Pedro Animas IV who disclosed that his family (referring to his mother, brothers and sisters) was on the verge of permanently losing to the Bank all of their family properties. The Animas family desperately needed to sell some of the properties so that the rest could be saved. Thus, S.N. Mole, as representative of the defendant, and Pedro Animas IV, as representative of the Animas Family, discussed and negotiated on what properties would be purchased and the terms of the purchase. HSTCcD 10. That defendant was shown a sketch plan of what was referred to therein as the "ANIMAS SUBDIVISION" situated at Matinao, Polomolok, South Cotabato and its corresponding "Development Permit" No. 01835 issued on January 10, 1985, covering TCT Nos. T-22186 and T-22188, for a residential subdivision in the name of applicant/owner "PEDRO ANIMAS", the late father of the Complainant Pesane Animas

Mongao. Because of their potential as residential subdivision, these very same two (2) parcels of land at Matinao were the ones defendant chose to purchase. 11. That, sometime in December, 1993, the defendant, through S.N. Mole went to General Santos City, bringing with him the two (2) checks necessary to pay the Bank in order to redeem the Animas family lands from the Bank, the written agreements outlining the terms of the purchase by defendant of the lands, and the deeds of absolute sale for the lands that defendant intended to purchase. 12. That upon delivery of the checks to the Bank, plaintiff (and her husband), as well as Pedro Animas, Jr. (the registered owner of the other land purchased by the defendant) signed the necessary memoranda of agreement, as well as the deeds of conveyances (deeds of absolute sale). 13. That, in the meantime, a Notice of Lis Pendens was annotated in TCT No. T22186 regarding Civil Case No. 5195 "FOR: PARTITION" then pending . . . and entitled "PEDRO ANIMAS VI, Plaintiff, versus NELLIE ANIMAS, BALDOMERO ANIMAS, EDUARDO ANIMAS, PEDRO ANIMAS, JR., PEDRO ANIMAS IV, PEDRO ANIMAS V, MARIVIC ANIMAS, MARINEL ANIMAS LIM and PESANE ANIMAS, Defendants" and, on May 23, 1994, judgment was rendered approving the Compromise Agreement, wherein "the defendants will give plaintiff the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS upon the sale of their Matinao properties in favor of PRYCE INC." 14. That in the middle of November, 1995 the lands subject of the purchase by the defendant were finally issued clearances for transfer of title in favor and in the name of the defendant. 15. That in early December, 1995, plaintiff Pesane Animas Mongao and the rest of the Animas Family were advised that defendant was ready to complete payments in accordance with their Memorandum of Agreement. 16. That in so far as Pedro Animas, Jr., was concerned, he did not object to payment being made to his brother and/or mother, but with respect to plaintiff Pesane Animas Mongao, it was then that the controversy began since plaintiff now demanded that payment be given to her alone to the exclusion of the rest of the Animas Family. 17. That in order to play safe, defendant issued the check in the amount of P3,353,357.84, payable to the order of plaintiff "Pesane Animas Mongao" and the surviving matriarch of the Animas Family in the person of "Nellie vda. de Animas". Plaintiff resented this arrangement and refused to accept payment unless the check was made out to her alone. 18. That since defendant was now receiving demands from plaintiff and the rest of the Animas Family (through Nellie vda. de Animas), defendant became confused on which was the proper party to receive payment and, on January 18, 1995, the amount

of P3,353,357.84 was deposited by the defendant by way consignment with the Clerk of Court of the Regional Court, 11th Judicial Region. 19. The defendant is still ready and willing to cause the release of said consignment amount (less consignment fees of the court) to whomsoever that the Court may adjudge to be the proper party entitled to the amount. 20. That since the start of the negotiations for the purchase of the lands, it was made clear to the defendant that the properties were part of the estate of the deceased Judge Pedro Animas and his surviving wife Nellie vda. de Animas and that the registered owners (the children) were merely holding the same in trust for the estate and Nellie vda. de Animas. 21. That no factual nor legal ground exists to support plaintiffs claim for rescission of contract. 22. That the complaint states no cause of action against the defendant.

23. That this suit actually involves conflicting claims among members of the same family. 27 In essence, respondent corporation justifies its refusal to tender payment of the purchase price solely to petitioner Mongao by alleging that the latter was a mere trustee and not the beneficial owner of the property subject of the sale and therefore not the proper party to receive payment. Such defense cannot prevent petitioners from seeking the rescission of the contract of sale. The express terms of the Memorandum of Agreement, the genuineness and due execution of which are not denied, clearly show that the contract of sale was executed only between petitioner Mongao and respondent corporation. Where there is an apparent repudiation of the trust by petitioner Mongao, such claim or defense may properly be raised only by the parties for whose benefit the trust was created. Respondent corporation cannot assert said defense in order to resist petitioners' claim for rescission where it has been sufficiently shown by the allegations of the complaint and answer that respondent corporation has breached its contractual obligation to petitioners. There being no material allegation in the answer to resist petitioners' claim, the trial court correctly rendered judgment based on the pleadings submitted by the parties. The Court of Appeals enumerated certain factual controversies, which it believed can only be resolved after presentation of evidence, and these are: (1) whether or not petitioner Mongao executed the Deed of Absolute Sale in favor of respondent corporation, and (2) whether or not petitioner Mongao is the sole owner of the subject property. CTAIDE The Court finds that the determination of these factual questions is immaterial to the resolution of the main issue of whether or not there is a valid cause for rescission in light of respondent's implied admissions of certain allegations and the weakness of

the affirmative defenses in the answer. At the risk of being repetitious, respondent corporation's answer admitted that there was a perfected contract of sale between respondent and petitioner Mongao and that respondent corporation refused to tender payment of the purchase price solely to petitioner Mongao. These admissions clearly make out a case for rescission of contract. On the peripheral issue of whether or not there was proper consignation of the purchase price with the RTC of Davao City, the Court adopts the trial court's finding that respondent corporation did not follow the procedure required by law, to wit: On the second issue, the mere consignment or deposit of the check to the Clerk of Court without observing the mandatory provisions of Articles 1256 to 1257 of the New Civil Code, does not produce the effect of payment in order that the obligor or the defendant herein shall be released from the obligation, hence, no payment of the unpaid balance of P3,353,357.84 has actually been made. In fact it was noted by the Court that the deposit is even conditional, i.e. it should not be released without a court order. 28 The records reveal that respondent corporation did not file any formal complaint for consignation but merely deposited the check with the Clerk of Court. A formal complaint must be commenced with the trial court to provide the proper venue for the determination if there is a valid tender of payment. Strictly speaking, without the institution of an action for tender of payment and consignation, the trial court cannot rule on whether or not respondent was justified in not effecting payment solely to petitioner Mongao. aSAHCE WHEREFORE, the instant petition for review is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 52753 is REVERSED and SET ASIDE and the Decision of the Regional Trial Court, Branch 35, General Santos City in Civil Case No. 5545 is hereby REINSTATED. Costs against respondent. SO ORDERED. Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur. Footnotes 1. Penned by Associate Justice Ruben T. Reyes, Chairman of the Twelfth Division, and concurred in by Associate Justices Presbitero J. Velasco, Jr. and Juan Q. Enriquez; Rollo, p. 147-161-A. 2. 3. 4. 5. Rollo, p. 173. Id. at 28-33. Id. at 38-40. Id. at 34-37.

6. 7. 8. 9. 10. 11. 12. 13.

Id. at 41. Id. at 47. Id. at 50. Id. at 51. Id. at 55-58. Id. at 58. Supra note 1. Rollo, p. 8.

14. Section 10, Rule 8 of the 1964 Rules of Court states: SECTION 10. Specific denial. The defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters which he will rely upon to support his denial. Where a pleader desires to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where the defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. 15. Section 8, Rule 8 of the 1964 Rules of Court states: SECTION 8. How to contest genuineness of such documents. When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but this provision does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused. 16. Vergara, Sr. v. Suelto, et al., G.R. No. L-74766, December 21, 1987, 156 SCRA 753, 761-762. 17. Section 4, Rule 6 of the 1964 Rules of Court states: SECTION 4. Answer. An answer is a pleading in which a defendant or other adverse party sets forth the negative and affirmative defenses upon which he relies. 18. Section 5, Rule 6 of the 1964 Rules of Court states: SECTION 5. Defenses. (a) Negative defense is the specific denial of the material fact or facts alleged in the complaint, essential to the plaintiff's cause or causes of action. (b) An affirmative defense is an allegation of new matter which, while admitting the material allegations of the complaint, expressly or impliedly, would

nevertheless prevent or bar recovery by the plaintiff. The affirmative defenses include fraud, statute of limitations, release payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and all other matter by way of confession and avoidance. 19. 20. 21. 22. 23. 24. 25. Supra note 16 at 762. Id. at 28-29. Id. at 41. Id. at 29. Id. at 29-30. Id. at 41-42. Id. at 44.

26. Supreme Transliner, Incorporated v. Court of Appeals, et al., G.R. No. 125356, November 21, 2001; 370 SCRA 41, 46 (2001). 27. 28. Rollo, pp. 42-45. Id. at 57.

THIRD DIVISION [G.R. No. 186242. December 23, 2009.] GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner, vs. CITY TREASURER and CITY ASSESSOR of the CITY OF MANILA, respondents. DECISION VELASCO, JR., J p: The Case For review under Rule 45 of the Rules of Court on pure question of law are the November 15, 2007 Decision 1 and January 7, 2009 Order 2 of the Regional Trial Court (RTC), Branch 49 in Manila, in Civil Case No. 02-104827, a suit to nullify the assessment of real property taxes on certain properties belonging to petitioner Government Service Insurance System (GSIS). The Facts Petitioner GSIS owns or used to own two (2) parcels of land, one located at Katigbak 25th St., Bonifacio Drive, Manila (Katigbak property), and the other, at Concepcion cor. Arroceros Sts., also in Manila (Concepcion-Arroceros property). Title to the

Concepcion-Arroceros property was transferred to this Court in 2005 pursuant to Proclamation No. 835 3 dated April 27, 2005. Both the GSIS and the Metropolitan Trial Court (MeTC) of Manila occupy the Concepcion-Arroceros property, while the Katigbak property was under lease. IEAacS The controversy started when the City Treasurer of Manila addressed a letter 4 dated September 13, 2002 to GSIS President and General Manager Winston F. Garcia informing him of the unpaid real property taxes due on the aforementioned properties for years 1992 to 2002, broken down as follows: (a) PhP54,826,599.37 for the Katigbak property; and (b) PhP48,498,917.01 for the Concepcion-Arroceros property. The letter warned of the inclusion of the subject properties in the scheduled October 30, 2002 public auction of all delinquent properties in Manila should the unpaid taxes remain unsettled before that date. On September 16, 2002, the City Treasurer of Manila issued separate Notices of Realty Tax Delinquency 5 for the subject properties, with the usual warning of seizure and/or sale. On October 8, 2002, GSIS, through its legal counsel, wrote back emphasizing the GSIS' exemption from all kinds of taxes, including realty taxes, under Republic Act No. (RA) 8291. 6 ITScHa Two days after, GSIS filed a petition for certiorari and prohibition 7 with prayer for a restraining and injunctive relief before the Manila RTC. In it, GSIS prayed for the nullification of the assessments thus made and that respondents City of Manila officials be permanently enjoined from proceedings against GSIS' property. GSIS would later amend its petition 8 to include the fact that: (a) the Katigbak property, covered by TCT Nos. 117685 and 119465 in the name of GSIS, has, since November 1991, been leased to and occupied by the Manila Hotel Corporation (MHC), which has contractually bound itself to pay any realty taxes that may be imposed on the subject property; and (b) the Concepcion-Arroceros property is partly occupied by GSIS and partly occupied by the MeTC of Manila. The Ruling of the RTC By Decision of November 15, 2007, the RTC dismissed GSIS' petition, as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered, DISMISSING the petition for lack of merit, and declaring the assessment conducted by the respondents City of Manila on the subject real properties of GSIS as valid pursuant to law. SO ORDERED. 9 THaDEA GSIS sought but was denied reconsideration per the assailed Order dated January 7, 2009. Thus, the instant petition for review on pure question of law.

The Issues 1. Whether petitioner is exempt from the payment of real property taxes from 1992 to 2002; 2. Whether petitioner is exempt from the payment of real property taxes on the property it leased to a taxable entity; and 3. Whether petitioner's real properties are exempt from warrants of levy and from tax sale for non-payment of real property taxes. 10 The Court's Ruling The issues raised may be formulated in the following wise: first, whether GSIS under its charter is exempt from real property taxation; second, assuming that it is so exempt, whether GSIS is liable for real property taxes for its properties leased to a taxable entity; and third, whether the properties of GSIS are exempt from levy. acHETI In the main, it is petitioner's posture that both its old charter, Presidential Decree No. (PD) 1146, and present charter, RA 8291 or the GSIS Act of 1997, exempt the agency and its properties from all forms of taxes and assessments, inclusive of realty tax. Excepting, respondents counter that GSIS may not successfully resist the city's notices and warrants of levy on the basis of its exemption under RA 8291, real property taxation being governed by RA 7160 or the Local Government Code of 1991 (LGC, hereinafter). The petition is meritorious. First Core Issue: GSIS Exempt from Real Property Tax Full tax exemption granted through PD 1146 In 1936, Commonwealth Act No. (CA) 186 11 was enacted abolishing the then pension systems under Act No. 1638, as amended, and establishing the GSIS to manage the pension system, life and retirement insurance, and other benefits of all government employees. Under what may be considered as its first charter, the GSIS was set up as a non-stock corporation managed by a board of trustees. Notably, Section 26 of CA 186 provided exemption from any legal process and liens but only for insurance policies and their proceeds, thus: Section 26. Exemption from legal process and liens. No policy of life insurance issued under this Act, or the proceeds thereof, when paid to any member thereunder, nor any other benefit granted under this Act, shall be liable to attachment, garnishment, or other process, or to be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of such member, or his beneficiary, or any other person who may have a right thereunder,

either before or after payment; nor shall the proceeds thereof, when not made payable to a named beneficiary, constitute a part of the estate of the member for payment of his debt. . . . CTaIHE In 1977, PD 1146, 12 otherwise known as the Revised Government Service Insurance Act of 1977, was issued, providing for an expanded insurance system for government employees. Sec. 33 of PD 1146 provided for a new tax treatment for GSIS, thus: Section 33. Exemption from Tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the System shall be preserved and maintained at all times and that the contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the System and/or their employees. Taxes imposed on the System tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits under this Act. Accordingly, notwithstanding any laws to the contrary, the System, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the System as of the approval of this Act are hereby considered paid. The benefits granted under this Act shall not be subject, among others, to attachment, garnishment, levy or other processes. This, however, shall not apply to obligations of the member to the System, or to the employer, or when the benefits granted herein are assigned by the member with the authority of the System. (Emphasis ours.) A scrutiny of PD 1146 reveals that the non-stock corporate structure of GSIS, as established under CA 186, remained unchanged. Sec. 34 13 of PD 1146 pertinently provides that the GSIS, as created by CA 186, shall implement the provisions of PD 1146. cSaATC RA 7160 lifted GSIS tax exemption Then came the enactment in 1991 of the LGC or RA 7160, providing the exercise of local government units (LGUs) of their power to tax, the scope and limitations thereof, 14 and the exemptions from taxations. Of particular pertinence is the general provision on withdrawal of tax exemption privileges in Sec. 193 of the LGC, and the special provision on withdrawal of exemption from payment of real property taxes in the last paragraph of the succeeding Sec. 234, thus: SEC. 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. No.

6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. SEC. 234. Exemption from Real Property Tax. . . . Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or juridical, including all government-owned or controlled corporation are hereby withdrawn upon the effectivity of this Code. From the foregoing provisos, there can be no serious doubt about the Congress' intention to withdraw, subject to certain defined exceptions, tax exemptions granted prior to the passage of RA 7160. The question that easily comes to mind then is whether or not the full tax exemption heretofore granted to GSIS under PD 1146, particular insofar as realty tax is concerned, was deemed withdrawn. We answer in the affirmative. In Mactan Cebu International Airport Authority v. Marcos, 15 the Court held that the express withdrawal by the LGC of previously granted exemptions from realty taxes applied to instrumentalities and government-owned and controlled corporations (GOCCs), such as the Mactan-Cebu International Airport Authority. In City of Davao v. RTC, Branch XII, Davao City, 16 the Court, citing Mactan Cebu International Airport Authority, declared the GSIS liable for real property taxes for the years 1992 to 1994 (contested real estate tax assessment therein), its previous exemption under PD 1146 being considered withdrawn with the enactment of the LGC in 1991. Significantly, the Court, in City of Davao, stated the observation that the GSIS' taxexempt status withdrawn in 1992 by the LGC was restored in 1997 by RA 8291. 17 TIEHSA Full tax exemption reenacted through RA 8291 Indeed, almost 20 years to the day after the issuance of the GSIS charter, i.e., PD 1146, it was further amended and expanded by RA 8291 which took effect on June 24, 1997. 18 Under it, the full tax exemption privilege of GSIS was restored, the operative provision being Sec. 39 thereof, a virtual replication of the earlier quoted Sec. 33 of PD 1146. Sec. 39 of RA 8291 reads: SEC. 39. Exemption from Tax, Legal Process and Lien. It is hereby declared to be the policy of the State that the actuarial solvency of the funds of the GSIS shall be preserved and maintained at all times and that contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to burden the members of the GSIS and their employers. Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding, any laws to the contrary, the GSIS, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked

and any assessment against the GSIS as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect. Moreover, these exemptions shall not be affected by subsequent laws to the contrary unless this section is expressly, specifically and categorically revoked or repealed by law and a provision is enacted to substitute or replace the exemption referred to herein as an essential factor to maintain or protect the solvency of the fund, notwithstanding and independently of the guaranty of the national government to secure such solvency or liability. AICHaS The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favor of the GSIS. (Emphasis ours.) The foregoing exempting proviso, couched as it were in an encompassing manner, brooks no other construction but that GSIS is exempt from all forms of taxes. While not determinative of this case, it is to be noted that prominently added in GSIS' present charter is a paragraph precluding any implied repeal of the tax-exempt clause so as to protect the solvency of GSIS funds. Moreover, an express repeal by a subsequent law would not suffice to affect the full exemption benefits granted the GSIS, unless the following conditionalities are met: (1) The repealing clause must expressly, specifically, and categorically revoke or repeal Sec. 39; and (2) a provision is enacted to substitute or replace the exemption referred to herein as an essential factor to maintain or protect the solvency of the fund. These restrictions for a future express repeal, notwithstanding, do not make the proviso an irrepealable law, for such restrictions do not impinge or limit the carte blanche legislative authority of the legislature to so amend it. The restrictions merely enhance other provisos in the law ensuring the solvency of the GSIS fund. Given the foregoing perspectives, the following may be assumed: (1) Pursuant to Sec. 33 of PD 1146, GSIS enjoyed tax exemption from real estate taxes, among other tax burdens, until January 1, 1992 when the LGC took effect and withdrew exemptions from payment of real estate taxes privileges granted under PD 1146; (2) RA 8291 restored in 1997 the tax exempt status of GSIS by reenacting under its Sec. 39 what was once Sec. 33 of P.D. 1146; 19 and (3) If any real estate tax is due to the City of Manila, it is, following City of Davao, only for the interim period, or from 1992 to 1996, to be precise.

Real property taxes assessed and due from GSIS considered paid While recognizing the exempt status of GSIS owing to the reenactment of the full tax exemption clause under Sec. 39 of RA 8291 in 1997, the ponencia in City of Davao appeared to have failed to take stock of and fully appreciate the all-embracing condoning proviso in the very same Sec. 39 which, for all intents and purposes, considered as paid "any assessment against the GSIS as of the approval of this Act." If only to stress the point, we hereby reproduce the pertinent portion of said Sec. 39: SEC. 39. Exemption from Tax, Legal Process and Lien. . . . Taxes imposed on the GSIS tend to impair the actuarial solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly, notwithstanding, any laws to the contrary, the GSIS, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of this Act are hereby considered paid. Consequently, all laws, ordinances, regulations, issuances, opinions or jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and rendered ineffective and without legal force and effect. (Emphasis added.) TSHEIc GSIS an instrumentality of the National Government Apart from the foregoing consideration, the Court's fairly recent ruling in Manila International Airport Authority v. Court of Appeals, 20 a case likewise involving real estate tax assessments by a Metro Manila city on the real properties administered by MIAA, argues for the non-tax liability of GSIS for real estate taxes. There, the Court held that MIAA does not qualify as a GOCC, not having been organized either as a stock corporation, its capital not being divided into shares, or as a non-stock corporation because it has no members. MIAA is rather an instrumentality of the National Government and, hence, outside the purview of local taxation by force of Sec. 133 of the LGC providing in context that "unless otherwise provided," local governments cannot tax national government instrumentalities. And as the Court pronounced in Manila International Airport Authority, the airport lands and buildings MIAA administers belong to the Republic of the Philippines, which makes MIAA a mere trustee of such assets. No less than the Administrative Code of 1987 recognizes a scenario where a piece of land owned by the Republic is titled in the name of a department, agency, or instrumentality. The following provision of the said Code suggests as much: Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following: . . .

(2) For property belonging to the Republic of the Philippines, but titled in the name of . . . any corporate agency or instrumentality, by the executive head of the agency or instrumentality. 21 While perhaps not of governing sway in all fours inasmuch as what were involved in Manila International Airport Authority, e.g., airfields and runways, are properties of the public dominion and, hence, outside the commerce of man, the rationale underpinning the disposition in that case is squarely applicable to GSIS, both MIAA and GSIS being similarly situated. First, while created under CA 186 as a non-stock corporation, a status that has remained unchanged even when it operated under PD 1146 and RA 8291, GSIS is not, in the context of the afore quoted Sec. 193 of the LGC, a GOCC following the teaching of Manila International Airport Authority, for, like MIAA, GSIS' capital is not divided into unit shares. Also, GSIS has no members to speak of. And by members, the reference is to those who, under Sec. 87 of the Corporation Code, make up the non-stock corporation, and not to the compulsory members of the system who are government employees. Its management is entrusted to a Board of Trustees whose members are appointed by the President. SEcADa Second, the subject properties under GSIS's name are likewise owned by the Republic. The GSIS is but a mere trustee of the subject properties which have either been ceded to it by the Government or acquired for the enhancement of the system. This particular property arrangement is clearly shown by the fact that the disposal or conveyance of said subject properties are either done by or through the authority of the President of the Philippines. Specifically, in the case of the Concepcion-Arroceros property, it was transferred, conveyed, and ceded to this Court on April 27, 2005 through a presidential proclamation, Proclamation No. 835. Pertinently, the text of the proclamation announces that the Concepcion-Arroceros property was earlier ceded to the GSIS on October 13, 1954 pursuant to Proclamation No. 78 for office purposes and had since been titled to GSIS which constructed an office building thereon. Thus, the transfer on April 27, 2005 of the Concepcion-Arroceros property to this Court by the President through Proclamation No. 835. This illustrates the nature of the government ownership of the subject GSIS properties, as indubitably shown in the last clause of Presidential Proclamation No. 835: WHEREAS, by virtue of the Public Land Act (Commonwealth Act No. 141, as amended), Presidential Decree No. 1455, and the Administrative Code of 1987, the President is authorized to transfer any government property that is no longer needed by the agency to which it belongs to other branches or agencies of the government. (Emphasis ours.) Third, GSIS manages the funds for the life insurance, retirement, survivorship, and disability benefits of all government employees and their beneficiaries. This undertaking, to be sure, constitutes an essential and vital function which the government, through one of its agencies or instrumentalities, ought to perform if

social security services to civil service employees are to be delivered with reasonable dispatch. It is no wonder, therefore, that the Republic guarantees the fulfillment of the obligations of the GSIS to its members (government employees and their beneficiaries) when and as they become due. This guarantee was first formalized under Sec. 24 22 of CA 186, then Sec. 8 23 of PD 1146, and finally in Sec. 8 24 of RA 8291. Second Core Issue: Beneficial Use Doctrine Applicable The foregoing notwithstanding, the leased Katigbak property shall be taxable pursuant to the "beneficial use" principle under Sec. 234 (a) of the LGC. It is true that said Sec. 234 (a), quoted below, exempts from real estate taxes real property owned by the Republic, unless the beneficial use of the property is, for consideration, transferred to a taxable person. SEC. 234. Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person. This exemption, however, must be read in relation with Sec. 133 (o) of the LGC, which prohibits LGUs from imposing taxes or fees of any kind on the national government, its agencies, and instrumentalities: SEC. 133. Common Limitations on the Taxing Powers of Local Government Units. Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: CSDcTH xxx xxx xxx

(o) Taxes, fees or charges of any kinds on the National Government, its agencies and instrumentalities, and local government units. (Emphasis supplied.) Thus read together, the provisions allow the Republic to grant the beneficial use of its property to an agency or instrumentality of the national government. Such grant does not necessarily result in the loss of the tax exemption. The tax exemption the property of the Republic or its instrumentality carries ceases only if, as stated in Sec. 234 (a) of the LGC of 1991, "beneficial use thereof has been granted, for a consideration or otherwise, to a taxable person." GSIS, as a government instrumentality, is not a taxable juridical person under Sec. 133 (o) of the LGC. GSIS, however, lost in a sense that status with respect to the Katigbak property when it contracted its beneficial use to MHC, doubtless a taxable person. Thus, the real estate tax assessment of PhP54,826,599.37 covering 1992 to 2002 over the subject

Katigbak property is valid insofar as said tax delinquency is concerned as assessed over said property. Taxable entity having beneficial use of leased property liable for real property taxes thereon The next query as to which between GSIS, as the owner of the Katigbak property, or MHC, as the lessee thereof, is liable to pay the accrued real estate tax, need not detain us long. MHC ought to pay. As we declared in Testate Estate of Concordia T. Lim, "the unpaid tax attaches to the property and is chargeable against the taxable person who had actual or beneficial use and possession of it regardless of whether or not he is the owner." Of the same tenor is the Court's holding in the subsequent Manila Electric Company v. Barlis 25 and later in Republic v. City of Kidapawan. 26 Actual use refers to the purpose for which the property is principally or predominantly utilized by the person in possession thereof. 27 Being in possession and having actual use of the Katigbak property since November 1991, MHC is liable for the realty taxes assessed over the Katigbak property from 1992 to 2002. The foregoing is not all. As it were, MHC has obligated itself under the GSIS-MHC Contract of Lease to shoulder such assessment. Stipulation l8 of the contract pertinently reads: 18. By law, the Lessor, [GSIS], is exempt from taxes, assessments and levies. Should there be any change in the law or the interpretation thereof or any other circumstances which would subject the Leased Property to any kind of tax, assessment or levy which would constitute a charge against the Lessor or create a lien against the Leased Property, the Lessee agrees and obligates itself to shoulder and pay such tax, assessment or levy as it becomes due. 28 (Emphasis ours.) As a matter of law and contract, therefore, MHC stands liable to pay the realty taxes due on the Katigbak property. Considering, however, that MHC has not been impleaded in the instant case, the remedy of the City of Manila is to serve the realty tax assessment covering the subject Katigbak property to MHC and to pursue other available remedies in case of nonpayment, for said property cannot be levied upon as shall be explained below. ECcaDT Third Core Issue: GSIS Properties Exempt from Levy In light of the foregoing disquisition, the issue of the propriety of the threatened levy of subject properties by the City of Manila to answer for the demanded realty tax deficiency is now moot and academic. A valid tax levy presupposes a corresponding tax liability. Nonetheless, it will not be remiss to note that it is without doubt that the

subject GSIS properties are exempt from any attachment, garnishment, execution, levy, or other legal processes. This is the clear import of the third paragraph of Sec. 39, RA 8291, which we quote anew for clarity: SEC. 39. xxx Exemption from Tax, Legal Process and Lien. . . . . xxx xxx

The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA) disallowances and from all financial obligations of the members, including his pecuniary accountability arising from or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or in connection with his position or work except when his monetary liability, contractual or otherwise, is in favor of the GSIS. (Emphasis ours.) The Court would not be indulging in pure speculative exercise to say that the underlying legislative intent behind the above exempting proviso cannot be other than to isolate GSIS funds and properties from legal processes that will either impair the solvency of its fund or hamper its operation that would ultimately require an increase in the contribution rate necessary to sustain the benefits of the system. Throughout GSIS' life under three different charters, the need to ensure the solvency of GSIS fund has always been a legislative concern, a concern expressed in the taxexempting provisions. Thus, even granting arguendo that GSIS' liability for realty taxes attached from 1992, when RA 7160 effectively lifted its tax exemption under PD 1146, to 1996, when RA 8291 restored the tax incentive, the levy on the subject properties to answer for the assessed realty tax delinquencies cannot still be sustained. The simple reason: The governing law, RA 8291, in force at the time of the levy prohibits it. And in the final analysis, the proscription against the levy extends to the leased Katigbak property, the beneficial use doctrine, notwithstanding. EacHSA Summary In sum, the Court finds that GSIS enjoys under its charter full tax exemption. Moreover, as an instrumentality of the national government, it is itself not liable to pay real estate taxes assessed by the City of Manila against its Katigbak and Concepcion-Arroceros properties. Following the "beneficial use" rule, however, accrued real property taxes are due from the Katigbak property, leased as it is to a taxable entity. But the corresponding liability for the payment thereof devolves on the taxable beneficial user. The Katigbak property cannot in any event be subject of a public auction sale, notwithstanding its realty tax delinquency. This means that the City of Manila has to satisfy its tax claim by serving the accrued realty tax

assessment on MHC, as the taxable beneficial user of the Katigbak property and, in case of nonpayment, through means other than the sale at public auction of the leased property. WHEREFORE, the instant petition is hereby GRANTED. The November 15, 2007 Decision and January 7, 2009 Order of the Regional Trial Court, Branch 49, Manila are REVERSED and SET ASIDE. Accordingly, the real property tax assessments issued by the City of Manila to the Government Service Insurance System on the subject properties are declared VOID, except that the real property tax assessment pertaining to the leased Katigbak property shall be valid if served on the Manila Hotel Corporation, as lessee which has actual and beneficial use thereof. The City of Manila is permanently restrained from levying on or selling at public auction the subject properties to satisfy the payment of the real property tax delinquency. No pronouncement as to costs. SO ORDERED. SEHACI Corona, Nachura, Peralta and Del Castillo, * JJ., concur. Footnotes 1. 2. Rollo, pp. 29-38. Penned by Judge Concepcion S. Alarcon-Vergara. Id. at 39.

3. Id. at 51-52, entitled "Amending Proclamation No. 78 dated October 13, 1954 by Transferring the Property Housing the Former Offices of the [GSIS] to the Supreme Court of the Philippines, Reserving the Same for the City of Manila Hall of Justice." 4. 5. 6. 7. 8. 9. 10. Id. at 40-41. Id. at 53, 54-55. Id. at 56-62. Id. at 63-76, dated October 7, 2002. Id. at 77-90. Id. at 38. Id. at 11.

11. Entitled "An Act to Create and Establish a 'Government Service Insurance System,' to Provide for its Administration, and to Appropriate the Necessary Funds Therefor."

12. Entitled "Amending, Expanding, Increasing and Integrating the Social Security and Insurance Benefits of Government Employees and Facilitating the Payment Thereof Under Commonwealth Act No. 186, as Amended, and for Other Purposes," approved on May 31, 1977. 13. Section 34. Implementing Body. The Government Service Insurance System as created and established under Commonwealth Act No. 186 shall implement the provisions of this Act. 14. Sec. 133(o) of the LGC provides that the taxing power of LGUs shall not extend to the levy of taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and LGUs. 15. 16. 17. 18. 19. 20. 21. G.R. No. 120082, September 11, 1996, 261 SCRA 667. G.R. No. 127383, 18 August 2005, 467 SCRA 280. Id. at 299. After its publication in the June 9, 1997 issue of the Philippine Star. City of Davao, supra note 16. G.R. No. 155650, July 20, 2006, 495 SCRA 591. Chapter 12, Book I.

22. Section 24. Accounts to be maintained. The System shall keep separate and distinct from one another the following funds: (a) . . . . The Government of the Republic of the Philippines hereby guarantees the fulfillment of the obligations of the [GSIS] to the members thereof when and as they shall become due. 23. Section 8. Government Guarantee. The Government of the Republic of the Philippines hereby guarantees the fulfillment of the obligations of the System to its members as and when they fall due. 24. SEC. 8. Government Guarantee. The government of the Republic of the Philippines hereby guarantees the fulfillment of the obligations of the GSIS to its members as and when they fall due. 25. 11. 26. G.R. No. 114231, May 18, 2001, 357 SCRA 832 and June 29, 2004, 433 SCRA G.R. No. 166651, December 9, 2005, 477 SCRA 324.

27. 28. *

Id at 333-334; citing Local Government Code, Sec. 199(b). Rollo, p. 48. Additional member per Special Order No. 805 dated December 4, 2009.

Copyright 2009

C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 185011 December 23, 2009 PEOPLE OF THE PHIL. vs. SANGKI M. ARA, ET AL. THIRD DIVISION [G.R. No. 185011. December 23, 2009.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SPO3 SANGKI ARA y MIRASOL, MIKE TALIB y MAMA, and JORDAN MUSA y BAYAN, accused-appellants. DECISION VELASCO, JR., J p: This is an appeal from the December 13, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00025B entitled People of the Philippines v. SPO3 Sangki Ara y Mirasol, Mike Talib y Mama, Jordan Musa y Bayan, which affirmed the Decision of the Regional Trial Court (RTC), Branch 9 in Davao City, convicting accused-appellants of violation of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002. The Facts Three Informations charged accused-appellants Sangki Ara, Mike Talib, and Jordan Musa, as follows: Criminal Case No. 51,471-2002 against Ara That on or about December 20, 2002, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, willfully, unlawfully and consciously traded, transported and delivered 26.6563 grams of Methamphetamine Hydrochloride or "shabu," which is a dangerous drug, with the aggravating circumstance of trading, transporting and delivering said 26.6563 grams of "shabu" within 100 meters from [the] school St. Peter's College of Toril, Davao City.

CONTRARY TO LAW. 1 Criminal Case No. 51,472-2002 against Talib That on or about December 20, 2002, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, willfully, unlawfully and consciously had in his possession and control one (1) plastic sachet of Methamphetamine Hydrochloride or "shabu," weighing 0.3559 gram, which is a dangerous drug. CONTRARY TO LAW. 2 Criminal Case No. 51,473-2002 against Musa That on or about December 20, 2002, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, without being authorized by law, willfully, unlawfully and consciously had in his possession and control five (5) big plastic sachet[s] of Methamphetamine Hydrochloride or "shabu" weighing 14.2936 grams, which is a dangerous drug. CONTRARY TO LAW. 3 During their arraignment, accused-appellants all gave a "not guilty" plea. Version of the Prosecution At the trial, the prosecution presented the following witnesses: Forensic Chemist Noemi Austero, PO2 Ronald Lao, SPO1 Bienvenido Furog, PO1 Enrique Ayao, Jr., SPO4 Rodrigo Mallorca, and PO2 Jacy Jay Francia. In the morning of December 20, 2002, a confidential informant (CI) came to the Heinous Crime Investigation Section (HCIS) of the Davao City Police Department and reported that three (3) suspected drug pushers had contacted him for a deal involving six (6) plastic sachets of shabu. He was instructed to go that same morning to St. Peter's College at Toril, Davao City and look for an orange Nissan Sentra car. 4 Police Chief Inspector Fulgencio Pavo, Sr. immediately formed a buy-bust team composed of SPO3 Reynaldo Capute, SPO4 Mario Galendez, SPO3 Antonio Balolong, SPO2 Arturo Lascaos, SPO2 Jim Tan, SPO1 Rizalino Aquino, SPO1 Bienvenido Furog, PO2 Vivencio Jumawan, Jr., PO2 Ronald Lao, and PO1 Enrique Ayao, Jr., who would act as poseur-buyer. 5 The team proceeded to the school where PO1 Ayao and the CI waited by the gate. At around 8:45 a.m., an orange Nissan Sentra bearing plate number UGR 510 stopped in front of them. The two men approached the vehicle and the CI talked briefly with an old man in the front seat. PO1 Ayao was then told to get in the back seat as accusedappellant Mike Talib opened the door. The old man, later identified as accusedappellant SPO3 Ara, asked PO1 Ayao if he had the money and the latter replied in the

positive. Ara took out several sachets with crystalline granules from his pocket and handed them to PO1 Ayao, who thereupon gave the pre-arranged signal of opening the car door. The driver of the car, later identified as accused-appellant Jordan Musa, tried to drive away but PO1 Ayao was able to switch off the car engine in time. The back-up team appeared and SPO1 Furog held on to Musa while PO2 Lao restrained Talib. PO1 Ayao then asked Ara to get out of the vehicle. 6 Recovered from the group were plastic sachets of white crystalline substance: six (6) big sachets, weighing 26.6563 grams, from Ara by PO1 Ayao; five (5) big sachets, weighing 14.2936 grams, from Musa by SPO1 Furog; and a small sachet, weighing 0.3559 gram, from Talib by PO2 Lao. 7 The three suspects were brought to the HCIS and the seized items indorsed to the Philippine National Police (PNP) Crime Laboratory for examination. Forensic Chemist Austero, who conducted the examination, found that the confiscated sachets all tested positive for shabu. 8 Version of the Defense The defense offered the sole testimony of Ara, who said that he had been a member of the PNP for 32 years, with a spotless record. On December 20, 2002, SPO3 Ara was in Cotabato City, at the house of his daughter Marilyn, wife of his co-accused Musa. He was set to go that day to the Ombudsman's Davao City office for some paperwork in preparation for his retirement on July 8, 2003. He recounted expecting at least PhP1.6 million in retirement benefits. 9 Early that morning, past three o'clock, he and Musa headed for Davao City on board the latter's car. As he was feeling weak, Ara slept in the back seat. Upon reaching Davao City, he was surprised to see another man, Mike Talib, in the front seat of the car when he woke up. Musa explained that Talib had hitched a ride on a bridge they had passed. 10 When they arrived in Toril, Ara noticed the car to be overheating, so they stopped. Ara did not know that they were near St. Peter's College since he was not familiar with the area. Talib alighted from the car and Ara transferred to the front seat. While Talib was getting into the back seat, PO1 Ayao came out of nowhere, pointed his .45 caliber pistol at Ara even if he was not doing anything, and ordered him to get off the vehicle. He saw that guns were also pointed at his companions. As the group were being arrested, he told PO1 Ayao that he was also a police officer. Ara insisted that he was not holding anything and that the shabu taken from him was planted. He asserted that the only time he saw shabu was on television. 11 The Ruling of the Trial Court The RTC pronounced accused-appellants guilty of the crimes charged. In its Decision dated March 1, 2003, the trial court held that the prosecution was able to establish

the quantum of proof showing the guilt of accused-appellants beyond reasonable doubt. It further ruled that the "intercept operation" conducted by the buy-bust team was valid. The dispositive portion of the RTC Decision reads: WHEREFORE, premised on the foregoing the Court finds the following: In Criminal Case No. 51,471-2002, the accused herein SANGKI ARA Y MASOL, Filipino, 55 years old, widower, a resident of Kabuntalan, Cotabato City, is hereby found GUILTY beyond reasonable doubt, and is CONVICTED of the crime of violation of Sec. 5, 1st paragraph of Republic Act 9165. He is hereby imposed the DEATH PENALTY and FINE of TEN MILLION PESOS (PhP10,000,000) with all the accessory penalties corresponding thereto, including absolute perpetual disqualification from any public office, in view of the provision of section 28 of RA 9165 quoted above. Since the prosecution proved beyond reasonable doubt that the crime was committed in the area which is only five (5) to six (6) meters away from the school, the provision of section 5 paragraph 3 Article II of RA 9165 was applied in the imposition of the maximum penalty against the herein accused. In Criminal Case No. 51,472-2002, the accused herein MIKE TALIB y MAMA, Filipino, of legal age, single and a resident of Parang, Cotabato, is found GUILTY beyond reasonable doubt, and is CONVICTED of the crime of violation of Sec. 11, 3rd paragraph, Article II of Republic Act 9165. He is hereby imposed a penalty of Imprisonment of SIXTEEN (16) YEARS and a fine of THREE HUNDRED THOUSAND PESOS (PhP300,000) with all the accessory penalties corresponding thereto. In Criminal Case No. 51,473-2002 the accused herein JORDAN MUSA Y BAYAN, Filipino, 30 years old, married and a resident of Cotabato City, is hereby found GUILTY beyond reasonable doubt and is CONVICTED of the crime for Violation of Sec. 11, 1st paragraph, Article II of Republic Act No. 9165. He is hereby sentenced to suffer a penalty of LIFE IMPRISONMENT and FINE of FOUR HUNDRED THOUSAND PESOS (PhP400,000) with all the accessory penalties corresponding thereto. SO ORDERED. 12 As the death penalty was imposed on Ara, the case went on automatic review before this Court. Conformably with People v. Mateo, 13 we, however, ordered the transfer of the case to the CA. The Ruling of the Appellate Court Contesting the RTC Decision, accused-appellants filed separate appeals before the CA. Talib claimed that it was erroneous for the trial court to have used the complaining witnesses' affidavits as basis for ruling that their arrest was valid. He also cited as erroneous the trial court's refusal to rule that the prosecution's evidence was

inadmissible. Lastly, he questioned the failure of the buy-bust team to follow the requirements of RA 9165 on proper inventory of seized drugs. Ara and Musa filed a joint brief, alleging the following: (1) the trial court erred in denying the Motion to Suppress and/or exclude illegally obtained evidence; (2) the trial court erred in denying the Demurrer to Evidence; (3) the trial court failed to consider that the criminal informations did not allege conspiracy among the accused; and (4) the trial court erred in ruling that the "intercept operation" was valid. The CA affirmed the trial court's decision with some modifications on the penalty imposed. It ruled that a majority of the errors raised in the appeal referred to technicalities in the conduct of buy-bust operations that did not invalidate the police officers' actions. On the issue of the evidence presented, the CA held that the presumption that police officers performed their duties in a regular manner was not overturned. The appellate court resolved the issue of the validity of the buy-bust operation by stating that the law requires no specific method of conducting such an operation. It ruled that to require a warrant of arrest would not accomplish the goal of apprehending drug pushers in flagrante delicto. The CA's Decision emphasized that all the elements necessary for the prosecution of illegal sale of drugs were established. The fallo of the December 13, 2007 CA Decision reads: WHEREFORE, premises foregoing, the appeal is hereby DISMISSED and the appealed March 1, 2003 Decision is hereby AFFIRMED subject to the modification insofar as the death penalty imposed upon accused SPO3 Sangki Ara is concerned. Accordingly, his penalty is hereby reduced to life imprisonment pursuant to Republic Act No. 9346. SO ORDERED. 14 On December 17, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties, save for Musa, manifested their willingness to forego the filing of additional briefs. The Issues Reiterating the matters raised before the CA, accused-appellants alleged the following: I Whether the Court of Appeals erred in holding that the arrest of the accusedappellants was valid based on the affidavits of the complaining witnesses II

Whether the Court of Appeals erred in disregarding the apparent defects and inconsistencies in the affidavits of the complaining witnesses III Whether the Court of Appeals erred in refusing to consider the suppression or exclusion of evidence IV Whether the Court of Appeals erred in not holding that the prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt Talib also raises the following grounds for his acquittal: I Whether the arrest of Talib was illegal and the evidence confiscated from him illegally obtained II Whether the police officers who conducted the illegal search and arrest also deliberately failed and/or violated the provisions of RA 9165 III Whether the testimonies of the prosecution's witnesses and their respective affidavits were gravely inconsistent Ara and Musa additionally raise the following issues: I Whether the trial court erred in denying the Demurrer to Evidence II Whether the trial court failed to consider that the criminal informations did not allege conspiracy among the accused III Whether the trial court erred in ruling that the "intercept operation" was valid Accused-appellant Musa also avers that the CA erred in convicting him since the prosecution failed to prove the corpus delicti of the offense charged. The Ruling of this Court

What are mainly raised in this appeal are (1) whether the buy-bust conducted was valid; (2) whether the crimes of illegal sale and illegal possession of drugs were sufficiently established; and (3) whether the chain of custody over the shabu was unbroken.

Warrantless Arrest and Seizure Valid In calling for their acquittal, accused-appellants decry their arrest without probable cause and the violation of their constitutional rights. They claim that the buy-bust team had more than a month to apply for an arrest warrant yet failed to do so. Owing to the special circumstances surrounding the drug trade, a buy-bust operation has long been held as a legitimate method of catching offenders. It is a form of entrapment employed as an effective way of apprehending a criminal in the act of commission of an offense. 15 We have ruled that a buy-bust operation can be carried out after a long period of planning. The period of planning for such operation cannot be dictated to the police authorities who are to undertake such operation. 16 It is unavailing then to argue that the operatives had to first secure a warrant of arrest given that the objective of the operation was to apprehend the accused-appellants in flagrante delicto. In fact, one of the situations covered by a lawful warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court is when a person has committed, is actually committing, or is attempting to commit an offense in the presence of a peace officer or private person. It is erroneous as well to argue that there was no probable cause to arrest accusedappellants. Probable cause, in warrantless searches, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. There is no hard and fast rule or fixed formula for determining probable cause, for its determination varies according to the facts of each case. 17 Probable cause was provided by information gathered from the CI and from accusedappellants themselves when they instructed PO1 Ayao to enter their vehicle and begin the transaction. The illegal sale of shabu inside accused-appellants' vehicle was afterwards clearly established. Thus, as we have previously held, the arresting officers were justified in making the arrests as accused-appellants had just committed a crime when Ara sold shabu to PO1 Ayao. 18 Talib and Musa were also frisked for contraband as it may be logically inferred that they were also part of Ara's drug activities inside the vehicle. This inference was further strengthened by Musa's attempt to drive the vehicle away and elude arrest. Moreover, the trial court correctly denied the Motion to Suppress or Exclude Evidence. We need not reiterate that the evidence was not excluded since the buy-bust operation was shown to be a legitimate form of entrapment. The pieces of evidence thus seized therein were admissible. As the appellate court noted, it was within legal bounds and no anomaly was found in the conduct of the buy-bust operation. There is,

therefore, no basis for the assertion that the trial court's order denying said motion was biased and committed with grave abuse of discretion. Prosecution Established Guilt Beyond Reasonable Doubt For the successful prosecution of the illegal sale of shabu, the following elements must be established: (1) the identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and its payment. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence. 19 All these requisites were met by the prosecution. In contrast, Ara, the sole defense witness, could only proffer the weak defenses of denial and alibi. He expressed surprise at having Talib in his car and claimed he was framed and that the shabu confiscated from him was planted. According to the trial court, however, Ara's lying on the witness stand "was so intense as he tried very hard in vain to win the Court's sympathy." 20 Given the prosecution's evidence, we rule that the presumption of regularity in the performance of official duties has not been overturned. The presumption remains because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive. 21 Ara could not explain why his fellow police officers, who did not know him prior to his arrest, would frame him for such a serious offense. Validity of Buy-Bust Operation Likewise questioned by the defense in the affidavits of the police officers was the allegation that there was a legitimate buy-bust operation. No marked money was presented to back up the police officers' claims. This argument lacks basis, however. There are requirements that must be complied with in proving the legitimacy of drug buy-bust operations. Nevertheless, this Court has ruled that presentation of the marked money used is not such a requirement. In the prosecution for the sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution, as long as the sale of dangerous drugs is adequately proved and the drug subject of the transaction is presented before the court. 22 In the instant case, the police officers' testimonies adequately established the illegal sale of shabu. The shabu was then presented before the trial court. The nonpresentation of the marked money may, thus, be overlooked as a peripheral matter. Talib further contends that it is incredible that a shabu transaction would be carried out in a very open and public place. Contrary to Talib's claim, however, judicial experience has shown that drug transactions have been conducted without much care for an inconspicuous location. Thus, we observed in People v. Roldan:

Drug pushing when done on a small level . . . belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall, in front of a store, along a street at 1:45 p.m., and in front of a house. 23 It is also argued as impossible to believe that even if there was already a deal between the informant and accused-appellants, it was the apprehending police officer who acted as the buyer and that he requested to see the shabu first before showing the money. These claims by Talib are similarly undeserving of consideration. First, there is no uniform method by which drug pushers and their buyers operate. Second, the choice of effective ways to apprehend drug dealers is within the ambit of police authority. Police officers have the expertise to determine which specific approaches are necessary to enforce their entrapment operations. 24 Third, as long as they enjoy credibility as witnesses, the police officers' account of how the buy-bust operation transpired is entitled to full faith and credit. 25 Lastly, these arguments are merely incidental and do not affect the elements of the crime which have been, in the instant case, sufficiently established. Talib also alleges that during his testimony, SPO1 Furog was not certain as to the reason he was apprehending Musa. Another claim is that SPO1 Furog, when examined by the prosecutor and two different defense lawyers, allegedly made relevant inconsistencies in his testimony. The pertinent exchange reads: Direct Examination of SPO1 Furog: Prosecutor Weis: Q What was your basis for stopping [Musa] from letting the car go?

A I made him [stop] the car[.] [W]e [had] to check them first because I think Ayao saw [that] Ara [had] the suspected shabu. Cross-Examination of SPO1 Furog: Atty. Estrada Q When you arrested Musa as you said, it was because he attempted to drive the car away, that was it? A The most, when SPO3 Sangki Ara told us that he was a PNP member and when we saw the substances from the two of them first. xxx xxx xxx

Q A xxx

You are referring to Musa and Ara? Yes sir. 26 xxx xxx

Atty. Javines Q Ayao did not arrest [Ara] inside the vehicle?

A Only I rushed to the vehicle. I don't know if he directly arrested him when he saw the substance and [got] out of the vehicle but I saw him get out from the vehicle. 27 The alleged inconsistencies in SPO1 Furog's "reason for apprehending Musa" are, however, insignificant and do not merit much consideration as well. The questioned parts in the testimony of SPO1 Furog do not dent the totality of evidence against accused-appellants. To repeat, the elements of the crime of illegal sale of drugs and illegal possession of drugs were both sufficiently established. Although SPO1 Furog was not categorical in explaining his basis for apprehending Musa, the arrest of the latter must be considered as part of a legitimate buy-bust operation which was consummated. Musa's arrest came after the pre-arranged signal was given to the back-up team and this served as basis for the police officers to apprehend all those in the vehicle, including Musa. Denial of Demurrer to Evidence Although alleged by accused-appellants Ara and Musa, no reason was given in the appeal as to why the trial court erred in denying their Demurrer to Evidence. Whatever their basis may be, an action on a demurrer or on a motion to dismiss rests on the sound exercise of judicial discretion. 28 In Gutib v. CA, 29 we explained that: A demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. Here, the trial court found competent and sufficient evidence to support a conviction of all three accused-appellants. We see no reason to overturn the trial court's finding. Allegation of Conspiracy in Information Not Necessary We find no merit in accused-appellants' insistence that conspiracy should have been alleged in the separate Informations indicting them. We agree with the appellate court, which succinctly stated that conspiracy was not alleged "precisely because

they were charged with different offenses for the distinct acts that each of them committed. One's possession of an illegal drug does not need to be conspired by another who, on his part, also possessed an illegal drug." 30 The three separate indictments against Ara, Musa, and Talib do not need to allege conspiracy, for the act of conspiring and all the elements of the crime must be set forth in the complaint or information only when conspiracy is charged as a crime. 31 Requirements of RA 9165 on Proper Inventory Musa contends that since the markings on the seized items were only made at the police station, there is a great possibility that these were replaced. The result, he argues, would be a lack of guarantee that what were inventoried and photographed at the crime laboratory were the same specimens confiscated from the accused. As recently highlighted in People v. Cortez 32 and People v. Lazaro, Jr., 33 RA 9165 and its subsequent Implementing Rules and Regulations (IRR) do not require strict compliance as to the chain of custody rule. The arrest of an accused will not be invalidated and the items seized from him rendered inadmissible on the sole ground of non-compliance with Sec. 21, Article II of RA 9165. We have emphasized that what is essential is "the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused." Briefly stated, non-compliance with the procedural requirements under RA 9165 and its IRR relative to the custody, photographing, and drug-testing of the apprehended persons, is not a serious flaw that can render void the seizures and custody of drugs in a buy-bust operation. 34 The chain of custody in the instant case did not suffer from serious flaws as accusedappellants argue. The recovery and handling of the seized drugs showed that, as to Ara, first, PO1 Ayao recovered six plastic sachets of white crystalline substance from Ara and marked them with both his and Ara's initials. Second, the sachets were likewise signed by property custodian PO3 Pelenio. Third, PO1 Ayao signed a Request for Laboratory Examination then personally delivered the sachets to the PNP Crime Laboratory for examination. Fourth, SPO4 Mallorca then received the sachets at the crime laboratory. As to Musa, first, SPO1 Furog seized the sachets from Musa and marked each with his own initials. Second, an Inventory of Property Seized was then made by SPO4 Galendez. Lastly, SPO1 Furog later submitted a Request for Laboratory Examination of the five (5) sachets weighing a total of 14.2936 grams to the PNP Crime Laboratory. As to Talib, first, PO2 Lao seized a small sachet from Talib during the buy-bust operation. Second, PO2 Lao delivered a Request for Laboratory Examination of one

(1) sachet of suspected shabu weighing 0.3559 gram. Third, SPO4 Mallorca also received the items at the PNP Crime Laboratory. Forensic Chemist Noemi Austero's examination of the sachets confiscated from all accused-appellants showed that these were positive for shabu. During trial, the seized items were identified in court. The five (5) sachets taken from Musa were marked Exhibits "A-1" to "A-5," while the sachet seized from Talib was marked Exhibit "B." The six (6) sachets taken from Ara were marked Exhibits "B1-B6." We are, thus, satisfied that the prosecution was able to preserve the integrity and evidentiary value of the shabu in all three criminal cases against accused-appellants. The rest of the arguments interposed are evidently without merit and do not warrant discussion. Penalties Imposed Criminal Case No. 51,472-2002 against Talib The crime of illegal possession of drugs is punishable by Sec. 11 of RA 9165, as follows: Sec. 11. xxx Possession of Dangerous Drugs. . . . xxx xxx

3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of . . . methamphetamine hydrochloride . . . . Talib was sentenced to imprisonment of sixteen (16) years and a fine of PhP300,000. Criminal Case No. 51,473-2002 against Musa The provision Musa was charged of violating provides the following penalty: (1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams; Musa was sentenced to life imprisonment and a fine of PhP400,000. Criminal Case No. 51,471-2002 against Ara The crime of illegal sale of shabu is penalized by Sec. 5, Art. 11 of RA 9165:

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The same section contains the following provision: If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case. Since the sale of shabu was within five (5) to six (6) meters from St. Peter's College, the maximum penalty of death should be imposed on Ara. Pursuant to RA 9346 or "An Act Prohibiting the Imposition of Death Penalty in the Philippines," however, only life imprisonment and a fine shall be meted on him. Ara was sentenced to life imprisonment and a fine of PhP10,000,000. He, however, is no longer eligible for parole. What distinguishes this case from others is that one of the accused-appellants was a police officer himself who should have known better than to break the law he was duty-bound to enforce. What is more, he is charged with the crime of selling illegal drugs, an offense so horrendous for destroying the lives of its victims and their families that the penalty of death used to be imposed on its perpetrators. No one could have been more deserving of such a punishment than someone who should be enforcing the law but caught pushing drugs instead. As it was, the death penalty was indeed originally imposed on SPO3 Ara, who had been in the service for more than 30 years. The ill effects of the use of illegal drugs are too repulsive and shocking to enumerate. Thus, once the charges of sale and possession of said drugs are established in cases such as this, any errors or technicalities raised by the suspects should not be allowed to invalidate the actions of those involved in curtailing their illegal activities. The punishments given to drug pushers should serve as deterrent for others not to commit the same offense. No price seems high enough for drug dealers to pay; it is just unfortunate that the penalty of death can no longer be imposed because it has been abolished. As the penalties meted out to all three accused-appellants are within the range provided by RA 9165, we affirm the CA's sentence.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 00025B entitled People of the Philippines v. SPO3 Sangki Ara y Mirasol, Mike Talib y Mama, Jordan Musa y Bayan is AFFIRMED with the modification that accused-appellant Sangki Ara is not eligible for parole. SO ORDERED. Corona, Nachura, Peralta and Del Castillo, * JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. CA rollo, p. 34. Id. at 34-35. Id. at 35. Rollo, p. 7. Id. Id. at 8-9. Id. at 9. Id. at 9-10. Id. at 11. Id. at 12. Id. at 13. CA rollo, pp. 45-46. G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

14. Rollo, p. 32. The Decision was penned by Associate Justice Rodrigo F. Lim, Jr., with Associate Justices Teresita Dy-Liacco Flores and Michael P. Elbinias, concurring. 15. 16. 17. 18. 19. 20. People v. Encila, G.R. No. 182419, February 10, 2009. Quinicot v. People, G. R. No. 179700, June 22, 2009. Epie, Jr. v. Ulat-Marredo, G.R. No. 148117, March 22, 2007, 518 SCRA 641, 647. People v. Lopez, G.R No. 181441, November 14, 2008. Cruz v. People, G.R. No. 164580, February 6, 2009. CA rollo, p. 43.

21. 22.

People v. Concepcion, G.R. No. 178876, June 27, 2008. Cruz v. People, supra note 19.

23. G.R. No. 98398, July 6, 1993, 224 SCRA 536, 548; citing People v. Paco, G.R. No. 76893, February 27, 1989, 170 SCRA 681 (other citations omitted). 24. People v. Lim, G.R. No. 187503, September 11, 2009.

25. Unless there is a clear and convincing evidence that the members of the buybust team were impelled by any improper motive, or were not properly performing their duties, their testimonies on the operation deserve full faith and credit. Chan v. Secretary of Justice, G.R. No. 147065, March 14, 2008. 26. 27. 28. 29. 30. 31. 32. 33. 34. * TSN, February 5, 2003, p. 18. Id. at 28. Nicolas v. Sandiganbayan, G.R. Nos. 175930-31, February 11, 2008. G.R. No. 131209, August 13, 1999, 312 SCRA 365. Rollo, p. 30. Lazarte v. Sandiganbayan, G.R. No. 180122, March 13, 2009. G.R. No. 183819, July 23, 2009. G.R. No. 186418, October 16, 2009. People v. Daria, G.R. No. 186138, September 11, 2009. Additional member per Special Order No. 805 dated December 4, 2009.

Copyright 2009

C D T e c h n o l o g i e s A s i a, I n c.

[G.R. No. 157870. November 3, 2008.] SOCIAL JUSTICE SOCIETY (SJS), petitioner, vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents. [G.R. No. 158633. November 3, 2008.] ATTY. MANUEL J. LASERNA, JR., petitioner, vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. [G.R. No. 161658. November 3, 2008.] AQUILINO Q. PIMENTEL, JR., petitioner, vs. COMMISSION ON ELECTIONS, respondent.

DECISION VELASCO, JR., J p: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. THEDcS As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. . . . The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. . . . The following shall be subjected to undergo drug testing: xxx xxx xxx

(c) Students of secondary and tertiary schools. Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing . . .; STIHaE (d) Officers and employees of public and private offices. Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, . . . for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; cAaETS xxx xxx xxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. TADIHE G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: aIHSEc WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. xxx Authorized Drug Testing. . . . xxx xxx

(g) All candidates for public office . . . both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected . . . . NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] CDAHaE SEC. 1. Coverage. All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. ...

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply . . . .

SEC. 4. Preparation and publication of names of candidates. Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. . . . SCADIT SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.) Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for reelection in the May 10, 2004 elections, 1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36 (g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SEC. 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. aCTHEA According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug

testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. ADSTCI G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement Agency) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36 (c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions. 2 It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed. 3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it. 4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. 5 HAcaCS The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest. 6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows:

(1) Do Sec. 36 (g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and IECcaA (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36 [g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36 (g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, 7 or alter or enlarge the Constitution. cASEDC Pimentel's contention is well-taken. Accordingly, Sec. 36 (g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed. 9 Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments . . . are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap. 10 EHSIcT

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation. 11 The substantive constitutional limitations are chiefly found in the Bill of Rights 12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36 (g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution. 13 Sec. 36 (g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36 (g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test". Viewed, therefore, in its proper context, Sec. 36 (g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non-compliance with the drug-testing requirement. CHDTEA It may of course be argued, in defense of the validity of Sec. 36 (g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug-testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36 (g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10,

2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. DCcTHa It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36 (g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36 [c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36 (c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs". This statutory purpose, per the policydeclaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs . . . through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects". 14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: aIAHcE Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] . . . apply to the Board . . . for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination . . . results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board . . . . xxx xxx xxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: ISDHEa xxx xxx xxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young

are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate. 15 The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure 16 under Sec. 2, Art. III 17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education), 18 both fairly pertinent US Supreme Court-decided cases involving the constitutionality of governmental search. cDSAEI In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment 19 of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth 20 and 14th Amendments and declared the random drugtesting policy constitutional. ACIDSc In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued,

unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. EAcCHI Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, 21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a druginfested school are visited not just upon the users, but upon the entire student body and faculty. 22 Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. TAHCEc Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of

public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy", 23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36 (c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution. 24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow. 25 EHCDSI The essence of privacy is the right to be left alone. 26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against 'unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task", to borrow from C. Camara v. Municipal Court. 28 Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power. 29 As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest. 31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employees and students for that matter under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures", the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. EcICDT The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees'

privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32 ESCcaT The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36 (d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations . . . for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. 33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis; 34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results". 35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. STHAaD To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the

medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. 36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social-economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. aSACED Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. 38 Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established. AaDSTH Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of

Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition (Constitutionality of Sec. 36 [c], [d], [f], and [g] of RA 9165) Unlike the situation covered by Sec. 36 (c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. EHaCTA We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless". In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. 40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36 (g) of RA 9165 and COMELEC Resolution No. 6486 as

UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36 (c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36 (f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36 (f) and (g) of RA 9165. No costs. aTSEcA SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, CarpioMorales, Azcuna, Tinga, Chico-Nazario, Nachura, Reyes, Leonardo-de Castro and Brion, JJ., concur. Footnotes 1. 2. 3. Re-elected as senator in the 2004 elections. Rollo (G.R. No. 158633), pp. 184-185. Dumlao v. COMELEC, No. L-52245, January 22, 1980, 95 SCRA 392, 401. TIaDHE

4. Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 939 (2003). 5. Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740.

6. Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 & 127867, November 5, 1997, 281 SCRA 330, 349; De Guia v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422. HSCAIT 7. 8. Palmer v. Board of Education, 276 NY 222 11 NE 2d 887. CRUZ, CONSTITUTIONAL LAW 4 (2000).

9. Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36 SCRA 228, 234. 10. 50 Phil. 259, 309 (1927).

11. J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 604 (1996). 12. Id. DAEaTS

13. See concurring opinion in Go v. Commission on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, 753. 14. 15. RA 9165, Sec. 2. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661.

16. Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22 SCRA 424, 444-445. 17. 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 person or things to be seized. EICSDT 18. 536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS 224-227 (2004). 19. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 20. The Fourth Amendment is almost similar to Sec. 2, Art. III of the Constitution, except that the latter limited the determination of probable cause to a judge after an examination under oath of the complainant and his witnesses. Hence, pronouncements of the US Federal Supreme Court and State Appellate Court may be considered doctrinal in this jurisdiction, unless they are manifestly contrary to our Constitution. See Herrera, HANDBOOK ON ARREST, SEARCH AND SEIZURE 8 (2003). CAcEaS 21. 22. 23. Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96. Rollo (G.R. No. 158633), p. 204, respondents' Consolidated Memorandum. Rollo (G.R. No. 157870), p. 10.

24. 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. 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 person or things to be seized. 25. Rollo (G.R. No. 158633), p. 9. aTHCSE

26. Ople, supra note 16, at 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932]. 27. 28. 29. 30. 62 Am. Jur. 2d, Privacy, Sec. 1. 387 U.S. 523; cited in 2 Bernas, supra note 18, at 232. 62 Am. Jur. 2d, Privacy, Sec. 17. Vernonia & Board of Education, supra notes 15 & 18.

31. Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra. 32. Supra note 16, at 166 & 169. cTAaDC

33. Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation of Drug Laboratories, a laboratory is required to use documented chain of custody procedures to maintain control and custody of specimens. 34. DOH IRR Governing Licensing and Accreditation of Drug Laboratories, Sec. 7 [10.3] provides that the original copy of the test results form shall be given to the client/donor, copy furnished the DOH and the requesting agency. 35. Id., Sec. 7 [10.4].

36. Secs. 47 and 48 of RA 9165 charge the Department of Labor and Employment with the duty to develop and promote a national drug prevention program and the necessary guidelines in the work place, which shall include a mandatory drafting and adoption of policies to achieve a drug-free workplace. HAEIac 37. CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND EMPLOYEES, Sec. 2. 38. 39. CONSTITUTION, Art. XI, Sec. 1. Tatad, supra note 6, at 351.

40. Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, CONST. LIM. 630 (8th ed.). cSEaTH

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A.M. No. RTJ-08-2144 November 3, 2008 RAUL H. SESBREO vs. IRENEO L. GAKO, JR., ET AL.

EN BANC [A.M. No. RTJ-08-2144. November 3, 2008.] (Formerly OCA IPI No. 06-2417-RTJ) ATTY. RAUL H. SESBREO, complainant, vs. JUDGE IRENEO L. GAKO, JR., Judge, Regional Trial Court (RTC), Branch 5, Cebu City, and MANUEL G. NOLLORA, Clerk of Court, RTC, Br. 5, Cebu City, respondents. DECISION LEONARDO-DE CASTRO, J p: This administrative case against Judge Ireneo L. Gako, Jr. and Clerk of Court Manuel G. Nollora, both of the Regional Trial Court (RTC), Branch 5, Cebu City, stemmed from a complaint 1 filed by Atty. Raul H. Sesbreo charging Judge Gako with (a) violation of Rule 3.05, Canon 3, in relation to Rule 1.02, Canon 2 of the Code of Judicial Conduct for his delay in resolving a Motion for Reconsideration filed in Special Proceedings No. 916-R entitled "Intestate Estate of Vito Borromeo", (b) violation of Canon 2 of the said Code for acting on the said case after he had recused himself from the case, and (c) incompetence, together with Clerk of Court Nollora. DTSaIc The complainant alleged that on June 27, 2003, he filed a motion for reconsideration of the Order 2 dated June 2, 2003 in Special Proceedings No. 916-R which was considered submitted for resolution per the Order dated July 4, 2003. According to the complainant, respondent Judge Gako deliberately failed to resolve the motion within the ninety (90)-day period prescribed by the Constitution, and in clear violation of the Code of Judicial Conduct, particularly Rule 3.05, Canon 3, mandating a judge to dispose of the court's business promptly and to decide cases within the required periods, and Rule 1.02, Canon 2, requiring judges to administer justice without delay. The complainant further alleged that on April 26, 2004, respondent judge issued an Order inhibiting himself from handling Special Proceedings No. 916-R. However, almost five (5) months after such inhibition, respondent judge still continued to act on the said case by issuing an Order dated September 3, 2004 granting the Motion for Clarification/Reconsideration filed by the heirs of Patrocino Borromeo Herrera. This, according to the complainant, violated Canon 2 of the Code of Judicial Conduct, requiring a judge to avoid impropriety and the appearance of impropriety in all activities. TaHDAS Complainant also charged respondent judge and his Clerk of Court of incompetence for failure to keep all the records of the case intact and for proceeding to resolve the case with incomplete records. Complainant asserted that respondents' incompetency is evident from the fact that when they turned over the records of the case to the RTC, Cebu City, Branch 9, only 16 out of the 72 volumes were accounted for as shown

by the receipts signed by Clerk of Court Christine Doller on June 17, 2005 3 and August 11, 2005. 4 In his 1st Indorsement dated January 19, 2006, Court Administrator Presbitero J. Velasco, Jr. 5 referred the letter-complaint to respondent judge for his comment within ten (10) days from receipt of the same. Respondent judge was likewise directed to comment on why no disciplinary action should be taken against him for violation of his professional responsibility as a lawyer pursuant to the resolution dated September 17, 2002 of the Court En Banc in A.M. 02-9-02-SC. 6 Said letter-complaint was also referred to Clerk of Court Nollora who filed his comment on March 20, 2006. 7 TAIaHE When respondent judge failed to comply with the 1st Indorsement, then Court Administrator Velasco sent a 1st Tracer dated March 30, 2006 to respondent judge reiterating the directive for him to file his comment within five (5) days from receipt thereof, otherwise, the matter will be submitted to the Court without his comment. 8 Again, respondent judge failed to comply. For refusing to submit his comment despite the two (2) directives of the Office of the Court Administrator (OCA), the Court issued a Resolution 9 directing respondent judge to show cause why he should not be administratively dealt with and to submit the required comment both within five (5) days from receipt thereof, with warning that in case of failure to comply, the Court shall take the necessary action against him and decide the administrative complaint on the basis of the record on hand. On March 15, 2007, respondent judge finally filed his Compliance 10 with an opening statement that he compulsorily retired from the service on September 20, 2006 and while working on his retirement papers, he suffered a mild stroke which necessitated his rehabilitation in his home. CIaHDc Respondent judge explained that the instant administrative matter stemmed from his issuance of the Order dated June 2, 2003 denying Virginia Lim Sesbreo's claim for attorney's fees from the estate of Vito Borromeo. From the denial of his claim, complainant, Atty. Raul Sesbreo, filed a motion for reconsideration. According to respondent judge, he did not act on the said motion because he believed that Virginia Lim Sesbreo should be the person who should have filed the motion for reconsideration and not herein complainant. Subsequently, respondent judge issued an order voluntarily inhibiting himself from the case because complainant had already filed the instant administrative complaint against him. With regard to his action on the motion filed by the heirs of Patrocino Borromeo Herrera despite his Order inhibiting himself from proceeding with the said case, respondent judge reasoned out that since the inhibition was voluntary on his part as the presiding judge, he felt then that it was also his discretion to disregard his Order. cACDaH

Explaining on how he was able to resolve the motion/s filed in Special Proceedings No. 916-R, despite the incomplete records of the said case, respondent judge maintained that his resolutions were based on the pertinent records of the case that were forwarded to him. On his part, respondent Clerk of Court Nollora admitted in his Comment 11 dated February 6, 2006 that only 16 volumes of the records of the case were turned over by their sala (Branch 5) to Branch 9. However, he hastened to add that only 16 volumes were received by them from the Office of the Clerk of Court. According to Nollora, he did not ask for the other volumes because there was no order from the court and that the motions and incidents submitted for resolution can be resolved even without reference to the other records of the case. He added that the remaining volumes would only congest their already filled mini-bodega and steel cabinets. Upon evaluation of the case, the OCA, in its Memorandum Report 12 dated June 12, 2008, made the following recommendations: IaSCTE (a) The instant administrative complaint be RE-DOCKETED as a regular administrative matter; (b) Clerk of Court Manuel G. Nollora, Regional Trial Court, Branch 5, Cebu City be (a) found guilty of simple neglect of duty, (b) FINED in the amount equivalent to one (1) month salary, and (C) STERNLY WARNED that a repetition of the same or similar offense shall be dealt with more severely, and (c) Former Presiding Judge Ireneo G. Gako, Regional Trial Court, Branch 5, Cebu City be (a) found guilty of undue delay in rendering a decision or order and of violating a Supreme Court Circular, (b) FINED in the amount of Forty Thousand Pesos (P40,000.00). Considering that respondent judge has already returned from the judicial service, let the same amount be DEDUCTED from his retirement benefits. The Court agrees with the findings of the OCA. The Constitution mandates all lower courts to decide or resolve cases or matters within three (3) months from their date of submission. Accordingly, Rules 1.02 of Canon 1 and 3.05 of Canon 3 of the Code of Judicial Conduct direct judges to administer justice impartially and without delay and to dispose of the court's business promptly and decide cases within the required periods. ADCEcI In line with the foregoing, the Court has laid down administrative guidelines to ensure the prompt disposition of judicial business. Thus, SC Administrative Circular No. 13-87 provides: 3. Judges shall observe scrupulously the periods prescribed by Article VIII, Section 15 of the Constitution for the adjudication and resolution of all cases or matters submitted in their courts. Thus, all cases or matters must be decided or resolved

within twelve months from date of submission by all lower collegiate courts while all other lower courts are given a period of three months to do so. . . . . Furthermore, SC Administrative Circular No. 1-88 states: 6.1 All Presiding Judges must endeavor to act promptly on all motions and interlocutory matters pending before their courts. . . . . Indisputably, respondent judge failed to act on the Motion for Reconsideration within three (3) months from the time said motion was submitted for resolution on July 4, 2003. His claim that the motion was not filed by the proper party is not a valid excuse to simply ignore said motion. Instead, he should have accordingly formally disposed of such motion. While it is true that respondent judge issued an Order voluntarily inhibiting himself from handling Special Proceedings No. 916-R, however, it does not appear on record that the Executive Judge was furnished with a copy of the said order for appropriate action. Respondent judge cannot also justify his inaction by his inhibition since if it was really his intention to refrain from handling the case, he should not have acted on the subsequent Motion for Clarification/Reconsideration filed by the heirs of Patrocino Borromeo Herrera. cSHIaA All told, the unreasonable delay of the respondent judge in resolving the motion submitted for his resolution clearly constituted a violation of complainant's constitutional right to a speedy disposition of his case. Having failed to resolve the Motion for Reconsideration within the prescribed period of time, respondent judge is liable for undue delay in resolving a decision or order which is considered a less serious offense. EHIcaT Regarding the charge of incompetency, it should be stressed that the duties and responsibilities of a judge are not strictly confined to judicial functions. He is also an administrator who must organize his court with a view to prompt and convenient dispatch of its business. As administrative officer of the Court, respondent judge should have required his clerk of court or any other court personnel to secure all the records of the case and keep the same intact although some of the volumes thereof would not be used in deciding the case. A judge is duty-bound to motivate his subordinates for the effective performance of the functions and duties of his office. In fact, the imperative and sacred duty of each and everyone in the court is to maintain its good name and standing as a temple of justice. Hence, any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary, shall be condemned and cannot be countenanced. 13 AEDCHc Finally, respondent judge should also be held liable for failure to obey directives from the OCA. As borne by the records, the two directives of the OCA, namely the 1st Indorsement dated January 19, 2006 and the 1st Tracer dated March 30, 2006, were received by respondent judge on February 9, 2006 and April 17, 2006, respectively.

Still, he contumaciously refused to submit his comment. It was only upon the issuance by this Court of a Resolution dated January 24, 2007 directing him to show cause why he should not be administratively dealt with for refusing to submit his comment that respondent judge finally complied. We find the explanation of respondent judge that he suffered a mild stroke to be insufficient to exonerate him, although it may mitigate his liability. While he may have been suffering from some ailment, he failed to show that it totally incapacitated him from complying with the lawful orders of the OCA. The failure of respondent judge to comply with the OCA's directives to file comment to the letter-complaint against him manifested his indifference to the lawful directives of the Court. In Martinez v. Judge Zoleta, 14 we held: Again, we find the need and occasion to rule that a resolution of the Supreme Court requiring comment on an administrative complaint against officials and employees of the judiciary should not be construed as a mere request from the Court. Nor should it be complied with partially, inadequately or selectively. Respondents in administrative complaints should comment on all accusations or allegations against them in the administrative complaints because it is their duty to preserve the integrity of the judiciary. Moreover, the Court should not and will not tolerate future indifference of respondents to administrative complaints and to resolutions requiring comment on such administrative complaints. cASIED A judge's (1) delay in rendering a decision or order and (2) failure to comply with this Court's rules, directives and circulars constitute less serious offenses under Rule 140, Section 9 of the Rules of Court: SEC. 9. Less Serious Charges. Less serious charges include:

1. Undue delay in rendering a decision or order, or in transmitting the records of a case; xxx 4. xxx xxx

Violation of Supreme Court rules, directives and circulars;

Section 11 (B) of said Rule 140 provides the following sanctions for less serious offenses: ScAIaT SEC. 11. Sanctions.

B. If the respondent is guilty of a less serious charge, any of the following sanctions shall be imposed: 1. Suspension from office without salary and other benefits for not less than one (1) month nor more than three (3) months; or 2. A fine of more than P10,000.00 but not exceeding P20,000.00.

For his part, respondent Clerk of Court Nollora, as an officer of the court, is dutybound to use reasonable skill and diligence in completing the record of the case even without any order from his presiding judge, as he is aware whether the record is complete or incomplete when he receives them. Under the 2002 Revised Manual for Clerks of Court, the branch clerk of court as the administrative officer of the court, among others, controls and supervises the safekeeping of court records. Moreover, Section 7, Rule 136 of the Rules of Court specifically mandates the clerk of court to safely keep all records, papers, files, exhibits and public property committed to his charge. As custodian of judicial records, it is incumbent upon him to ensure an orderly and efficient record management system in the court and to supervise the personnel under his office to function effectively. A clerk of court plays a key role in the complement of the court and cannot be permitted to slacken on his job under one pretext or another. He must be assiduous in performing his official duties and in supervising and managing court dockets and records. 15 In this case, he fell short of his duty. Thus, we find him administratively liable for simple neglect of duty. TAcDHS Simple neglect of duty is defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference. Under Section 52 (B), Rule IV of the Uniform Rules on Administrative Cases in the Civil Service in correlation with Rule XIV, Section 23 of the Omnibus Civil Service Rules and Regulations implementing Book V of Executive Order No. 292, the penalty for simple neglect of duty, a less grave offense, is suspension for a period of one (1) month and one (1) day to six (6) months for the first offense and dismissal for the 2nd offense. As it appears it was respondent clerk of court's first infraction, we find the penalty of suspension for one (1) month and one (1) day without pay to be sufficient. Furthermore, to prevent any undue adverse effect on the public service which would ensue should work be left unattended by reason of respondent's suspension, we deem it wise to convert his penalty to the payment of a fine. Thus, in line with jurisprudence, 16 we impose a fine instead of suspension, so that he can continue to discharge his assigned tasks. HCTaAS WHEREFORE, judgment is hereby rendered: (1) Finding Judge IRENEO L. GAKO, JR. GUILTY for two less serious offenses: (1) undue delay in rendering a decision/resolution and (2) violation of Court directives for which he is hereby FINED in the total amount of P30,000.00 to be deducted from the amount withheld from his retirement benefits. 2) Finding Clerk of Court MANUEL G. NOLLORA GUILTY for simple neglect of duty and is FINED in the amount equivalent to one (1) month salary and sternly WARNED that a repetition of the same or similar offense shall be dealt with more severely. ScCIaA SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, CarpioMorales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura and Brion, JJ., concur. Reyes, J., is on official leave. Footnotes 1. Rollo, pp. 1-2.

2. Denying herein complainant's Urgent Motion for Satisfaction/Execution of the RTC Orders dated August 29, 1989 and October 3, 1990 awarding attorney's fees to the latter, which RTC Orders were affirmed in toto by the Court of Appeals in CA-G.R. SP-30134 and the Supreme Court in G.R. No. 124160 and G.R. No. 134874. CIHAED 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Rollo, p. 46. Id. at 47. Now Supreme Court Associate Justice. Rollo, p. 13. Id. at 15. Id. at 18. Id. at 22. Id. at 24-25. Id. at 15-16. Id. at 42-43. DTaAHS

13. Kummer v. Abella-Aquino, A.M. No. RTJ-04-1873, February 28, 2005, 452 SCRA 396, 405. IHEaAc 14. 15. 374 Phil. 35, 47 (1999). Salvador v. Serrano, A.M. No. P-06-2104, January 31, 2006, 481 SCRA 55, 71.

16. Aquino v. Lavadia, A.M. No. P-01-1483, September 20, 2001, 365 SCRA 441, 446-447.

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[G.R. Nos. 178831-32. April 1, 2009.]

JOCELYN SY LIMKAICHONG, petitioner, vs. COMMISSION ON ELECTIONS, NAPOLEON N. CAMERO and RENALD F. VILLANDO, respondents. [G.R. No. 179120. April 1, 2009.] LOUIS C. BIRAOGO, petitioner, vs. HON. PROSPERO NOGRALES, Speaker of the House of Representatives of the Congress of the Philippines, and JOCELYN SY LIMKAICHONG, respondents. [G.R. Nos. 179132-33. April 1, 2009.] OLIVIA P. PARAS, petitioner, vs. HON. PROSPERO NOGRALES, in his capacity as Speaker of the House of Representatives; HON. ROBERTO NAZARENO, in his capacity as Secretary General of the House of Representatives; HON. RHODORA SEVILLA, in her capacity as Deputy Secretary General for Finance of the House of Representatives; THE COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, respondents. [G.R. Nos. 179240-41. April 1, 2009.] RENALD F. VILLANDO, petitioner, vs. COMMISSION ON ELECTIONS and JOCELYN SY LIMKAICHONG, respondents. DECISION PERALTA, J p: Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the jurisdiction of the House of Representatives Electoral Tribunal begins over election contests relating to his election, returns, and qualifications, and mere allegation as to the invalidity of her proclamation does not divest the Electoral Tribunal of its jurisdiction. DACTSH At the core of these contentious consolidated petitions are: (1) the Joint Resolution 1 of the Commission on Elections (COMELEC) Second Division dated May 17, 2007, disqualifying Jocelyn D. Sy Limkaichong (Limkaichong) from running as a congressional candidate for the First District of Negros Oriental; (2) the COMELEC En Banc Resolution 2 dated June 29, 2007, affirming her disqualification; and (3) the COMELEC En Banc Resolution 3 dated August 16, 2007, resolving that all pending incidents relating to her qualifications should now be determined by the House of Representatives Electoral Tribunal (HRET). 2009jur The facts are uncontroverted. On March 26, 2007, Limkaichong filed with the COMELEC her Certificate of Candidacy 4 (COC) for the position of Representative of the First District of Negros Oriental. TaDCEc In the following weeks, two (2) petitions for her disqualification were instituted before the COMELEC by concerned citizens coming from her locality. On April 4, 2007,

Napoleon Camero, a registered voter of La Libertad, Negros Oriental, filed the petition for her disqualification on the ground that she lacked the citizenship requirement of a Member of the House of Representatives. The petition, which was docketed as SPA No. (PES) A07-006, 5 alleged that she is not a natural-born Filipino because her parents were Chinese citizens at the time of her birth. On April 11, 2007, Renald F. Villando, also a registered voter of the same locality, filed the second petition on the same ground of citizenship, docketed as SPA (PES) No. A07-007. 6 He claimed that when Limkaichong was born, her parents were still Chinese citizens as the proceedings for the naturalization of Julio Ong Sy, her father, never attained finality due to procedural and substantial defects. Both petitions prayed for the cancellation of Limkaichong's COC and for the COMELEC to strike out her name from the list of qualified candidates for the Representative of the First District of Negros Oriental. DTcASE In her separate Answers 7 to the petitions, Limkaichong claimed that she is a naturalborn Filipino since she was born to a naturalized Filipino father and a natural-born Filipino mother, who had reacquired her status as such due to her husband's naturalization. Thus, at the time of her birth on November 9, 1959, nineteen (19) days had already passed after her father took his Oath of Allegiance on October 21, 1959 and after he was issued a Certificate of Naturalization on the same day. She contended that the COMELEC should dismiss the petitions outright for lack of cause of action. Citing Salcedo II v. Commission on Elections, 8 she averred that a petition filed before an election, questioning the qualification of a candidate, should be based on Section 78, 9 in relation to Section 74 10 of the Omnibus Election Code (OEC), 11 and not under Sections 68 12 and 74 thereof in relation to Section 1, 13 Rule 25 of the COMELEC Rules of Procedure 14 and Section 5, 15 paragraph C (3.a) of COMELEC Resolution No. 7800. 16 She also contended that the petitions were dismissible on the ground that they were in the nature of a collateral attack on her and her father's citizenships, in contravention of the well-established rule that attack on one's citizenship may only be made through a direct action for its nullity. EcHTCD The COMELEC consolidated the two (2) petitions and re-docketed them as SPA Nos. 07-247 17 and 07-248, 18 entitled IN THE MATTER OF THE PETITION TO DISQUALIFY JOCELYN SY LIMKAICHONG FROM HER CANDIDACY AS FIRST DISTRICT REPRESENTATIVE OF NEGROS ORIENTAL (herein referred to as the disqualification cases), which remained pending on May 14, 2007, when the National and Local Elections were conducted. After the casting, counting and canvassing of votes in the said elections, Limkaichong emerged as the winner with 65,708 votes 19 or by a margin of 7,746 votes over another congressional candidate, Olivia Paras 20 (Paras), who obtained 57,962. On May 15, 2007, Paras filed with the COMELEC a Very Urgent Motion for Leave to Intervene and to Suspend the Proclamation of Jocelyn Sy Limkaichong as Winning Candidate of the First District of Negros Oriental. 21 IaTSED

In a Joint Resolution 22 dated May 17, 2007, the COMELEC Second Division granted the petitions in the disqualification cases, disqualified Limkaichong as a candidate for Representative of the First District of Negros Oriental, directed the Provincial Supervisor of the COMELEC to strike out her name from the list of eligible candidates, and for the Provincial Board of Canvassers (PBOC) to suspend her proclamation. In disposing the cases, the COMELEC Second Division made the following ratiocination: On the substantial issue of whether respondent Jocelyn Sy-Limkaichong is disqualified to run for the congressional seat of the First District of Negros Oriental on the ground that she is not a natural-born Filipino, we hold that she is so disqualified. Petitioners have successfully discharged their burden of proof and has convincingly shown with pieces of documentary evidence that Julio Ong Sy, father of herein respondent Jocelyn Sy-Limkaichong, failed to acquire Filipino citizenship in the naturalization proceedings which he underwent for the said purpose. ISCHET An examination of the records of Special Case No. 1043 would reveal that the Office of the Solicitor General was deprived of its participation in all the stages of the proceedings therein, as required under Commonwealth Act No. 473 or the Revised Naturalization Law and Republic Act No. 530, An Act Making Additional Provisions for Naturalization. xxx xxx xxx

The documents presented by petitioners showed that the OSG was not furnished copies of two material orders of the trial court in the said proceedings. One was the July 9, 1957 Order granting his petition for naturalization and the other was the September 21, 1959 Order declaring Julio Ong Sy as a Filipino citizen. Moreover, from a perusal of the same page 171 of the OSG logbook, we have determined that the OSG did not receive a notice for the hearing conducted by the trial court on July 9, 1959, prior to its issuance of the September 12, 1959 Order declaring Julio Ong Sy as a Filipino citizen. cCSHET As correctly pointed out by petitioners, this was fatal to the naturalization proceedings of Julio Ong Sy, and prevented the same from gaining finality. The leading case in the matter is Republic v. Hon. Gabriel V. Valero, 136 SCRA 617 (May 31, 1985), wherein the Supreme Court declared: And as though that was not enough, the hearing prior to the oathtaking of respondent Tan was conducted without the required notice to the Solicitor General. It is true, as it appeared later, that Fiscal Veluz, Jr. was authorized by the Solicitor General to represent the Government in the hearing of the application for naturalization. That authority, however, does not extend to Fiscal [Veluz's] right to appear for the State in the hearing preparatory to the oathtaking. Private respondent Tan was therefore

under legal obligation to serve copy of his motion to be allowed to take his oath of allegiance as a Filipino citizen upon the Solicitor General which was not done. Respondent argues that upon his taking of the Oath of Allegiance, Julio Ong Sy became a Filipino citizen for all intents and purposes, with all the rights appurtenant thereto. cICHTD This argument does not hold water, as was held by the Supreme Court in the same case of Republic v. Valero, supra: That private respondent Tan had already taken his oath of allegiance does not in any way legalize the proceedings relative thereto which is pregnant with legal infirmities. Compounding these irregularities is the fact that Tan was allowed to take his oath even before the expiration of the thirty (30)-day period within which an appeal may be made thus making the said oath not only highly improper but also illegal. In the same case, the Supreme Court added: To sustain the same would be to sanction a monstrosity known as citizenship by estoppel. The grant of naturalization under such circumstances is illegal and cancellation thereof may be had at any time. Neither estoppel nor res judicata may be set up as a bar from instituting the necessary proceedings to nullify the certificate of naturalization so issued. cACEaI Another glaring defect in the said proceedings was the fact that Julio Ong Sy took his Oath of Allegiance on October 21, 1959, which was exactly thirty (30) days after his declaration as a naturalized Filipino. Even granting that the OSG was notified of the September 21, 1959 Order, this was still one day short of the reglementary period required under Sections 11 and 12 of C.A. No. 473, above-cited. The thirty-day reglementary period is so required under the law so that the OSG could make known his objections and to appeal from the order of the trial court declaring the petitioner a naturalized Filipino citizen. This is also the reason why a copy of the petitioner's motion to take his oath of allegiance has to be furnished to the OSG. The respondent insists that naturalization proceedings are in rem and are binding on the whole world. HEDaTA She would have been correct had all the necessary parties to the case been informed of the same. The OSG, being the counsel for the government, has to participate in all the proceedings so that it could be bound by what has transpired therein. Lacking the participation of this indispensable party to the same, the proceedings are null and void and, hence, no rights could arise therefrom.

From all the foregoing, therefore, it could be seen that Julio Ong Sy did not acquire Filipino citizenship through the naturalization proceedings in Special Case No. 1043. Thus, he was only able to transmit to his offspring, Chinese citizenship. Respondent Jocelyn Sy-Limkaichong being the daughter of Julio Ong Sy, and having been born on November 9, 1959, under the 1935 Philippine Constitution, is a Chinese national, and is disqualified to run as First District Representative of Negros Oriental. WHEREFORE, the Petitions are GRANTED and Jocelyn D. Sy-Limkaichong is declared as DISQUALIFIED from her candidacy for Representative of the First District of Negros Oriental. SCEDAI The Provincial Supervisor of the Commission on Elections of Negros Oriental is hereby directed to strike out the name JOCELYN SY-LIMKAICHONG from the list of eligible candidates for the said position, and the concerned Board of Canvassers is hereby directed to hold and/or suspend the proclamation of JOCELYN SY-LIMKAICHONG as winning candidate, if any, until this decision has become final. SO ORDERED. 23 The PBOC received the Joint Resolution of the COMELEC Second Division on the evening of May 17, 2007, and accordingly suspended the proclamation of Limkaichong. 24 The following day, or on May 18, 2007, the COMELEC En Banc issued Resolution No. 8062 25 adopting the policy-guidelines of not suspending the proclamation of winning candidates with pending disqualification cases which shall be without prejudice to the continuation of the hearing and resolution of the involved cases. On May 20, 2007, Limkaichong filed with the COMELEC a Motion for Reconsideration of the Joint Resolution of May 17, 2007 and Urgent Motion to Lift the Order Suspending Proclamation. 26 TcIHDa On May 22, 2007, Limkaichong filed another motion for the lifting of the directive suspending her proclamation, insisting that she should be proclaimed as the winner in the congressional race pursuant to COMELEC Resolution No. 8062. 27 On same date, Villando, one of the petitioners in the disqualification cases, filed an Urgent Manifestation Clarifying COMELEC Resolution No. 8062 with Motion, 28 praying that the COMELEC should not lift the suspension of Limkaichong's proclamation. On May 25, 2007, the PBOC, in compliance with COMELEC Resolution No. 8062, reconvened and proclaimed Limkaichong as the duly elected Member of the House of Representatives for the First District of Negros Oriental. 29 Thereafter, or on May 30, 2007, Paras filed with the COMELEC a Petition to Nullify and/or Annul the Proclamation of Jocelyn Sy-Limkaichong as First District Representative of Negros Oriental in relation to the May 17, 2007 Joint Resolution of

the COMELEC Second Division, 30 stating, among others, that Limkaichong's proclamation violated the earlier order of the COMELEC Second Division suspending her proclamation. The petition, docketed as SPC No. 07-211, was dismissed by the COMELEC First Division, 31 ratiocinating that the disqualification cases were not yet final when Limkaichong was proclaimed. Accordingly, her proclamation which was valid or legal, effectively divested the COMELEC of its jurisdiction over the cases. The COMELEC First Division explained its ruling in this wise: DHSaCA The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall be no suspension of proclamation of winning candidates with pending disqualification cases involving, among others, issues of citizenship. As the disqualification cases involving Limkaichong were still pending reconsideration by the en banc, the underlying policy which gave rise to the issuance of the Resolution: to respect the will of the Filipino electorate, applies to the suspension of proclamation of the winning congressional candidate for the First District of Negros Oriental. WHEREFORE, the instant petition is dismissed. SO ORDERED. (Emphasis ours) Dissatisfied, Paras moved for the reconsideration of the above Resolution. 32 Meanwhile, in a Resolution 33 dated June 29, 2007, the COMELEC En Banc, in an equally divided vote of 3:3, denied Limkaichong's motion for reconsideration of the Joint Resolution of the COMELEC Second Division in the disqualification cases. The pertinent portions of the Resolution denying her motion reads: aESICD Anent the issue of jurisdiction, We rule that the Commission has jurisdiction to rule on Respondent Limkaichong's Motion for Reconsideration notwithstanding her proclamation as it is only this Commission, and not the House of Representatives Electoral Tribunal (HRET), which has jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. As stated by the Supreme Court in the leading case of Codilla v. De Venecia, G.R. No. 150605, December 10, 2002, respondent herself seasonably challenged the validity of the resolution of the Second Division in her motion for reconsideration. Hence, the issue of respondent's disqualification was still within the exclusive jurisdiction of the Comelec En Banc to resolve, and HRET cannot assume jurisdiction on the matter, to wit: To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in his Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the Comelec En Banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter. cASTED In Puzon v. Cua, even the HRET ruled that the "doctrinal ruling that once a proclamation has been made and a candidate-elect has assumed office, it is this

Tribunal that has jurisdiction over an election contest involving members of the House of Representatives, could not have been immediately applicable due to the issue regarding the validity of the very COMELEC pronouncements themselves." This is because the HRET has no jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. Finally, in disposing the Opposition to the Motion for Reconsideration with Partial Motion for Reconsideration filed by intervenor Olivia P. Paras praying that she be proclaimed as the winning candidate for First District Representative, suffice it to say that in the same case of Codilla v. De Venecia, supra, the Supreme Court held, thus: SECIcT More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for the office, no one can be declared elected in his place. In Domino v. COMELEC, this Court ruled, viz.: It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received that (sic) other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among the qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. aIcDCT xxx xxx xxx

The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration in favor of the person who has obtained a plurality of votes, and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. 2009jur All told, We find no cogent reason to disturb the findings of this Commission (Second Division) in its Joint Resolution promulgated on May 17, 2007. CTHaSD

WHEREFORE, premises considered, the instant Motion for Reconsideration of Respondent Jocelyn Sy-Limkaichong is hereby DENIED. The Opposition to the Motion for Reconsideration with Partial Motion for Reconsideration filed by Intervenor Olivia P. Paras praying that she be proclaimed as the winning candidate for the First District Representative of Negros Oriental is hereby denied for lack of merit. SO ORDERED. 34 On July 3, 2007, Limkaichong filed in the disqualification cases against her a Manifestation and Motion for Clarification and/or To Declare the Petitions as Dismissed in Accordance with Section 6, Rule 18 of the COMELEC Rules of Procedure. 35 She contended that, with her proclamation, her having taken her oath of office and her assumption of the position, the COMELEC was divested of jurisdiction to hear the disqualification cases. She further contended that, following Section 6, 36 Rule 18 of the COMELEC Rules of Procedure, the disqualification cases would have to be reheard, and if on rehearing, no decision would be reached, the action or proceedings should be dismissed, because the COMELEC En Banc was equally divided in opinion when it resolved her motion for reconsideration. EScIAa On an even date, Paras wrote the House of Representatives informing it of the COMELEC En Banc Resolution dated June 29, 2007 upholding the Joint Resolution of the COMELEC Second Division dated May 17, 2007, which disqualified Limkaichong as a congressional candidate. 37 In the interim, then Speaker of the House of Representatives Jose de Venecia, Jr. (De Venecia) allowed Limkaichong to officially assume the office as a Member of the House of Representatives on July 23, 2007, as shown in the Journal of the House of Representatives. 38 Despite Limkaichong's repeated pleas for the resolution of her manifestation and motion for clarification, 39 the COMELEC did not resolve the same. Hence, on August 1, 2007, she filed with this Court a Petition for Certiorari 40 under Rule 65, in relation to Rule 64 of the 1997 Rules of Civil Procedure docketed as G.R. Nos. 178831-32 praying for the annulment of the May 17, 2007 Joint Resolution of the COMELEC Second Division and the June 29, 2007 Resolution of the COMELEC En Banc in the disqualification cases for having been issued with grave abuse of discretion amounting to lack of jurisdiction. She averred that since she was already proclaimed on May 25, 2007 as Representative of the First District of Negros Oriental, had assumed office on June 30, 2007, and had started to perform her duties and functions as such, the COMELEC had lost its jurisdiction and it is now the HRET which has jurisdiction over any issue involving her qualifications for the said office. acCTIS On August 16, 2007, the COMELEC En Banc ruled on Limkaichong's manifestation and motion for clarification, 41 with the following disquisition:

In view of the proclamation of Limkaichong and her subsequent assumption of office on June 30, 2007, this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal in accordance with the above-quoted provision of the Constitution. WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of Representatives should now be determined by the House of Representatives Electoral Tribunal. aTEScI SO ORDERED. (Emphasis ours) On August 24, 2007, Louis Biraogo (Biraogo), as a citizen and a taxpayer, filed with the Court a Petition for Prohibition and Injunction with Preliminary Injunction and/or Temporary Restraining Order 42 under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, docketed as G.R. No. 179120, seeking to enjoin and permanently prohibit: (a) De Venecia from allowing Limkaichong to sit in the House of Representatives and participate in all its official activities; and (b) Limkaichong from holding office as its Member. 43 Meanwhile, on August 28, 2007, Paras has instituted before the Court a Petition for Quo Warranto, Prohibition and Mandamus with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction 44 under Rule 65 of the 1997 Rules of Civil Procedure, docketed as G.R. Nos. 179132-33, seeking, among others, the ouster of Limkaichong from the House of Representatives on account of her disqualification and for the holding of special elections to fill the vacancy created by such. 45 TEAICc On even date, the COMELEC Second Division promulgated a Resolution 46 denying Villando's motion to suspend the proclamation of Limkaichong, which denial was affirmed by the COMELEC En Banc in a Resolution 47 dated February 1, 2008. On September 5, 2008, Villando also filed with this Court a Petition for Certiorari and Injunction with Preliminary Injunction and Temporary Restraining Order 48 under Rule 65 of the 1997 Rules of Civil Procedure, docketed as G.R. Nos. 179240-41, contending, among others, that the COMELEC En Banc gravely abused its discretion in issuing the August 16, 2007 Resolution 49 because it still acted on Limchaikong's manifestation and motion for clarification, notwithstanding that the same was not set for hearing and considering that its June 29, 2007 Resolution had already become final and executory. cIaCTS As the four (4) petitions are interrelated, the Court resolved to consolidate them in its Resolutions dated September 4 and 11, 2007.

The Court heard the parties in oral argument on August 26, 2008, during which the following issues were tackled: 1. Whether the proclamation of Limkaichong by the Provincial Board of Canvassers of Negros Oriental is valid; 2. Whether said proclamation divested the Commission on Elections of jurisdiction to resolve the issue of Limkaichong's citizenship; 3. Whether the House of Representatives Electoral Tribunal shall assume jurisdiction, in lieu of the COMELEC, over the issue of Limkaichong's citizenship; EITcaH 4. Whether the COMELEC Second Division and the COMELEC En Banc correctly ruled that Limkaichong is disqualified from running as a Member of the House of Representatives on the ground that she is not a natural-born citizen; 5. and, Whether the COMELEC disqualification of Limkaichong is final and executory;

6. Whether the Speaker of the House of Representatives may be compelled to prohibit Limkaichong from assuming her duties as a Member of the House of Representatives. On same day, the Court required the parties to simultaneously file within twenty (20) days their respective memoranda, after which the petitions shall be deemed submitted for resolution, with or without the memoranda. Section 6, Article VI of the 1987 Philippine Constitution provides for the qualification of a Member of the House of Representatives, thus: SETaHC Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. When Limkaichong filed her COC, she stated therein that she is a natural-born Filipino citizen. It was not true, according to the petitioners in the disqualification cases, because her father remained a Chinese citizen at the time of her birth. The COMELEC Second Division has sided with Camero and Villando, and disqualified Limkaichong to run as a congressional candidate in the First District of Negros Oriental for having failed to comply with the citizenship requirement. Accordingly, her proclamation was ordered suspended notwithstanding that she obtained the highest number of votes during the elections. Nonetheless, she was proclaimed by the PBOC pursuant to the policy guidelines of COMELEC En Banc Resolution No. 8062, and she has since

assumed her position and performed her functions as a Member of the House of Representatives. DEIHAa I Whether Limkaichong's proclamation was valid. The proclamation of Limkaichong was valid. The COMELEC Second Division rendered its Joint Resolution dated May 17, 2007. On May 20, 2007, Limkaichong timely filed with the COMELEC En Banc her motion for reconsideration as well as for the lifting of the incorporated directive suspending her proclamation. The filing of the motion for reconsideration effectively suspended the execution of the May 17, 2007 Joint Resolution. 50 Since the execution of the May 17, 2007 Joint Resolution was suspended, there was no impediment to the valid proclamation of Limkaichong as the winner. Section 2, Rule 19 of the COMELEC Rules of Procedure provides: Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution for implementation of the decision, resolution, order and ruling. aCSDIc In G.R. Nos. 179132-33, Paras, however, maintained that Limkaichong was a Chinese citizen who was disqualified to run as a congressional candidate by way of a final judgment of the COMELEC. With that, her proclamation was questionable and the same was done in open defiance of the Joint Resolution dated May 17, 2007 of the COMELEC Second Division. She also stressed that Limkaichong's proclamation was procedurally defective, it appearing that one of the PBOC members was not present on May 25, 2007, and that it took place in a restaurant and not at the provincial capitol. Finally, she argued that Limkaichong's proclamation was void in accordance with the Court's pronouncement in the case of Codilla v. De Venecia. 51 The Office of the Solicitor General (OSG) filed its Comment on the petition of Paras, expressing its support for the position taken by the latter. A perusal of the arguments advanced by Paras and the OSG does not sway the Court to rule against the validity of Limkaichong's proclamation. No less than the COMELEC First Division has sustained the validity of her proclamation when it dismissed, by way of a Resolution dated June 29, 2007, the petition filed by Paras to nullify the proclamation. Not only that. The COMELEC First Division has also adopted Limkaichong's argument that following her valid proclamation, the COMELEC's jurisdiction over the disqualification cases has ceased and that the same should be threshed out in the proper proceedings filed before the HRET. Notably, the dismissal of Paras' petition was affirmed by the COMELEC in its Omnibus Order dated January 28, 2008. AcSIDE

In addition, the validity of Limkaichong's proclamation is in accordance with COMELEC En Banc Resolution No. 8062. The disqualification cases filed against her remained pending as a result of her timely motion for reconsideration. Villando (in G.R. Nos. 179240-41), however, maintained that Resolution No. 8062 is invalid; hence, it could not be used as basis to validate Limkaichong's proclamation. He argued that it must be published since it is a "policy-guideline" in the exercise of the COMELEC's rulemaking power. As such, it cannot supersede the Joint Resolution of the Second Division which was rendered pursuant to the COMELEC's quasi-judicial power. His argument is specious. Resolution No. 8062 is not only a policy-guideline. It is also an administrative interpretation of the two (2) provisions of the 1987 Constitution, namely: (i) Section 17, 52 Article VI (ii); Section 2 (2), 53 Article IX-C; Section 6 54 of R.A. 6646; and Sections 241 55 and 243, 56 Article XX of the OEC. As such, it does not have to comply with the due process requirement. The term "administrative" connotes or pertains to "administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things." It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon. 57 This is to be distinguished from "quasi-judicial function", a term which applies, among others, to the action or discretion of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. 58 HIAEcT Resolution No. 8062 is a valid exercise of the COMELEC's constitutionally mandated power to promulgate its own rules of procedure relative to the conduct of the elections. 59 In adopting such policy-guidelines for the May 14, 2007 National and Local Elections, the COMELEC had in mind the objective of upholding the sovereign will of the people and in the interest of justice and fair play. Accordingly, those candidates whose disqualification cases are still pending at the time of the elections, should they obtain the highest number of votes from the electorate, shall be proclaimed but that their proclamation shall be without prejudice to the continuation of the hearing and resolution of the involved cases. Whereas, in this case, the COMELEC Second Division having failed to act on the disqualification cases against Limkaichong until after the conduct of the elections, with her obtaining the highest number of votes from the electorate, her proclamation was properly effected by the PBOC pursuant to Resolution No. 8062. CaTSEA The Court has held in the case of Planas v. COMELEC, 60 that at the time of the proclamation of Defensor, the respondent therein who garnered the highest number of votes, the Division Resolution invalidating his certificate of candidacy was not yet final. As such, his proclamation was valid or legal, as he had at that point in time remained qualified. Limkaichong's situation is no different from that of Defensor, the former having been disqualified by a Division Resolution on the basis of her not being a natural-born Filipino citizen. When she was proclaimed by the PBOC, she was the

winner during the elections for obtaining the highest number of votes, and at that time, the Division Resolution disqualifying her has not yet became final as a result of the motion for reconsideration. IaESCH II Whether, upon Limkaichong's proclamation, the HRET, instead of the COMELEC, should assume jurisdiction over the disqualification cases. In her petition (G.R. Nos. 178831-32), Limkaichong argued that her proclamation on May 25, 2007 by the PBOC divested the COMELEC of its jurisdiction over all issues relating to her qualifications, and that jurisdiction now lies with the HRET. Biraogo, on the other hand, believed otherwise. He argued (in G.R. No. 179120) that the issue concerning Limkaichong's disqualification is still within the exclusive jurisdiction of the COMELEC En Banc to resolve because when Limkaichong was proclaimed on May 25, 2007, the matter was still pending resolution before the COMELEC En Banc. We do not agree. The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. 61 It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section 250 62 of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members. 63 aCSDIc Section 17, Article VI of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as amended, which states: EaHATD RULE 14. Jurisdiction. The Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the House of Representatives. The COMELEC En Banc, in its Resolution dated August 16, 2007, had given paramount consideration to the two (2) aforementioned provisions when it stated that: In view of the proclamation of Limkaichong and her subsequent assumption of office on June 30, 2007, this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal in accordance with the above-quoted provision of the Constitution. WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of Representatives should now be determined by the House of Representatives Electoral Tribunal. SaIACT SO ORDERED. (Emphasis supplied) Worth citing also is the ratiocination of the COMELEC First Division when it dismissed the petition of Paras seeking the nullity of Limkaichong's proclamation, thus: The present situation is similar not to the factual circumstances of Codilla, which Paras invokes, but rather to that in Planas which adheres to the general rule giving jurisdiction to the House of Representatives Electoral Tribunal. As at the time of Limkaichong's proclamation, her disqualification was not yet final, her proclamation was valid or legal. This Commission no longer has jurisdiction over the case. This, notwithstanding the Second Division's directive suspending Limkaichong's proclamation. THaDAE The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall be no suspension of proclamation of winning candidates with pending disqualification cases, involving, among others, issues of citizenship. As the disqualification cases involving Limkaichong were still pending reconsideration by the En Banc, the underlying policy which gave rise to the issuance of the resolution: to respect the will of the Filipino electorate, applies to the suspension of proclamation of the winning Congressional candidate for the First District of Negros Oriental. WHEREFORE, the instant petition is DISMISSED. SO ORDERED.

Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) steadfastly maintained that Limkaichong's proclamation was tainted with irregularity, which will effectively prevent the HRET from acquiring jurisdiction. TASCEc The fact that the proclamation of the winning candidate, as in this case, was alleged to have been tainted with irregularity does not divest the HRET of its jurisdiction. 64 The Court has shed light on this in the case of Vinzons-Chato, 65 to the effect that: 2009jur In the present case, it is not disputed that respondent Unico has already been proclaimed and taken his oath of office as a Member of the House of Representatives (Thirteenth Congress); hence, the COMELEC correctly ruled that it had already lost jurisdiction over petitioner Chato's petition. The issues raised by petitioner Chato essentially relate to the canvassing of returns and alleged invalidity of respondent Unico's proclamation. These are matters that are best addressed to the sound judgment and discretion of the HRET. Significantly, the allegation that respondent Unico's proclamation is null and void does not divest the HRET of its jurisdiction: . . . [I]n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is selfevident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate. EDSHcT Further, for the Court to take cognizance of petitioner Chato's election protest against respondent Unico would be to usurp the constitutionally mandated functions of the HRET. In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a member's qualification to sit in the House of Representatives. The 1998 HRET Rules, as amended, provide for the manner of filing either an election protest or a petition for quo warranto against a Member of the House of Representatives, to wit: Rule 16. Election protest. A verified petition contesting the election of any Member of the House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten (10) days after the proclamation of the winner. The party filing the protest shall be designated as the protestant while the adverse party shall be known as the protestee. DACaTI xxx xxx xxx

Rule 17. Quo Warranto. A verified petition for quo warranto contesting the election of a Member of the House of Representatives on the ground of ineligibility or

of disloyalty to the Republic of the Philippines shall be filed by any voter within ten (10) days after the proclamation of the winner. The party filing the petition shall be designated as the petitioner while the adverse party shall be known as the respondent. xxx xxx xxx

Rule 19. Periods Non-Extendible. The ten-day period mentioned in Rules 16 and 17 is jurisdictional and cannot be extended. Accordingly, after the proclamation of the winning candidate in the congressional elections, the remedy of those who may assail one's eligibility/ineligibility/qualification/disqualification is to file before the HRET a petition for an election protest, or a petition for quo warranto, within the period provided by the HRET Rules. In Pangilinan v. Commission on Elections, 66 we ruled that where the candidate has already been proclaimed winner in the congressional elections, the remedy of petitioner is to file an electoral protest with the Electoral Tribunal of the House of Representatives. HTaIAC The PBOC proclaimed Limkaichong as the winner on May 25, 2007. Thus, petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) should have filed either an election protest or petition for quo warranto within ten days from May 25, 2007. But they did not. In fact, to date, no petition of protest or petition for quo warranto has been filed with the HRET. Verily, the ten-day prescriptive period for initiating a contest against Limkaichong has long expired. However, the said ten-day prescriptive period under the 1998 HRET Rules does not apply to disqualification cases based on citizenship. Under the 1987 Constitution, Members of the House of Representatives must be natural-born citizens not only at the time of their election but during their entire tenure. Being a continuing requirement, one who assails a member's citizenship or lack of it may still question the same at any time, the ten-day prescriptive period notwithstanding. ScHADI In Frivaldo v. Commission on Elections, 67 the Court held that: The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office as governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have the right to remain in office simply because the challenge to her title may not longer be made within ten days from her proclamation? . . .

This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country alone, abjuring and renouncing all fealty to any other state. cSITDa However, in assailing the citizenship of the father, the proper proceeding should be in accordance with Section 18 of Commonwealth Act No. 473 which provides that: Sec. 18. Cancellation of Naturalization Certificate Issued. Upon motion made in the proper proceedings by the Solicitor General or his representative, or by the proper provincial fiscal, the competent judge may cancel the naturalization certificate issued and its registration in the Civil Register: 1. If it is shown that said naturalization certificate was obtained fraudulently or illegally; caADSE 2. If the person naturalized shall, within five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his permanent residence there: Provided, That the fact of the person naturalized remaining more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up his permanent residence in the same: 3. If the petition was made on an invalid declaration of intention;

4. If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Office of Private Education of the Philippines, where Philippine history, government or civics are taught as part of the school curriculum, through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree canceling the naturalization certificate shall be forwarded by the clerk of Court of the Department of Interior and the Bureau of Justice; aCSHDI 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. (Emphasis supplied)

As early as the case of Queto v. Catolico, 68 where the Court of First Instance judge motu proprio and not in the proper denaturalization proceedings called to court various grantees of certificates of naturalization (who had already taken their oaths of allegiance) and cancelled their certificates of naturalization due to procedural infirmities, the Court held that: TCHEDA . . . It may be true that, as alleged by said respondents, that the proceedings for naturalization were tainted with certain infirmities, fatal or otherwise, but that is beside the point in this case. The jurisdiction of the court to inquire into and rule upon such infirmities must be properly invoked in accordance with the procedure laid down by law. Such procedure is the cancellation of the naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in the manner fixed in Section 18 of Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made in the proper proceedings by the Solicitor General or his representatives, or by the proper provincial fiscal." In other words, the initiative must come from these officers, presumably after previous investigation in each particular case. (Emphasis supplied) Clearly, under law and jurisprudence, it is the State, through its representatives designated by statute, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizen's descendant. DTIcSH III Whether the COMELEC Second Division and the COMELEC En Banc correctly disqualified Limkaichong on the ground that she is not a natural-born Filipino citizen. In resolving the disqualification cases, the COMELEC Second Division relied on the entries in the docket book of the OSG, 69 the only remaining record of the naturalization proceedings, 70 and ruled on the basis thereof that the naturalization proceedings of Julio Ong Sy, Limkaichong's father, in Special Case No. 1043, were null and void. The COMELEC Second Division adopted Villando and Camero's arguments that the OSG was deprived of its participation in the said case for it was not furnished copies of the following: (a) the July 9, 1957 Order of the Court of First Instance (CFI) granting the petition for naturalization; and (b) the September 21, 1959 Order of the CFI declaring Julio Ong Sy a Filipino citizen. Thus, when the latter took his oath of allegiance on October 21, 1959, it was exactly 30 days after his declaration as a naturalized Filipino, or one day short of the reglementary period required under Sections 11 and 12 of Commonwealth Act No. 473. Such defects were fatal to the naturalization proceedings of Julio Ong Sy and prevented the same from gaining finality. The COMELEC Second Division concluded that since Julio Ong Sy did not acquire Philippine citizenship through the said naturalization proceedings, it follows that Limkaichong remains a Chinese national and is disqualified to run as candidate and be elected as a Member of the House of Representatives. IHEAcC

We cannot resolve the matter of Limkaichong's citizenship as the same should have been challenged in appropriate proceedings as earlier stated. IV Whether the COMELEC's disqualification of Limkaichong is final and executory. In resolving this issue, pertinent is the provision of Section 13 (b), Rule 18 of the 1993 COMELEC Rules of Procedure: Sec. 13. Finality of Decisions or Resolutions. . . .

(b) In Special Actions and Special Cases, a decision or resolution of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court. DHAcET In his Memorandum dated June 27, 2008, Biraogo stated that the Resolution of the COMELEC En Banc in the disqualification cases became final and executory after five (5) days from its promulgation and that the same was not restrained by this Court pursuant to Section 13 (b), Rule 18 of the 1993 COMELEC Rules of Procedure. He averred that since Limkaichong received a copy of the COMELEC En Banc Resolution dated June 29, 2007 on July 3, 2007, she had until July 8, 2007 within which to obtain a restraining order from the Court to prevent the same from becoming final and executory. However, she did not do anything to that effect. Biraogo also averred that Limkaichong is guilty of forum shopping; hence, her petition must be dismissed by the Court. Instead of asking the Court for what Biraogo opined as a restraining order, Limkaichong filed with this Court, on August 1, 2007, her petition for certiorari assailing the said COMELEC En Banc Resolution pursuant to Section 2, 71 Rule 64, in relation to Rule 65, 1997 Rules of Civil Procedure, postulating that she had thirty (30) days from July 4, 2007 within which to file the petition, or until August 3, 2007. She cited Section 7, Article IX of the 1987 Constitution, which prescribes the power of this Court to review decisions of the COMELEC, 72 thus: AICTcE SEC. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. In his Comment on the petition, Villando prayed for the outright dismissal of Limkaichong's petition as (a) it was filed beyond the reglementary period; (b) Limkaichong engaged in prohibited forum shopping; and (c) Limkaichong admitted

that the issues raised have become moot and academic. He also sought to declare Limkaichong in contempt of court for forum shopping. SEIaHT The COMELEC, through the OSG, also filed its Comment, praying for the denial of Limkaichong's petition and its dismissal for being moot, contending that: (a) the COMELEC En Banc Resolution dated August 16, 2007 has rendered the instant petition moot and academic; and (b) Limkaichong knowingly and intentionally engaged in forum shopping. The OSG argued that, without waiting for the resolution of her Motion for Clarification and two (2) successive motions to resolve said motions which are pending before the COMELEC En Banc, Limkaichong filed the present petition to question the Joint Resolution dated May 17, 2007 of the COMELEC Second Division, which issues were pending before the COMELEC En Banc. Her act of seeking relief from this Court while there were several other incidents pending before the COMELEC, the final resolution in either one of which will amount to res judicata in the other, clearly showed forum shopping on her part. In her Reply to the above Comments, Limkaichong countered that she did not engage in forum shopping, for had she waited for the COMELEC to rule on her manifestation and other motions, it would have resulted in the expiration of the reglementary period for filing a petition for certiorari before the Court. cDCSTA The May 17, 2007 Joint Resolution of the COMELEC Second Division disqualifying Limkaichong and suspending her proclamation cannot yet be implemented considering that she timely filed a motion for reconsideration. Thus, pursuant to Section 13 (c), Rule 18 and Section 2 Rule 19 of the COMELEC Rules of Procedure, the Joint Resolution has not yet attained finality for it to be implemented. 2009jur Notably, the seeming impropriety of the Resolution of the COMELEC En Banc dated June 29, 2007 has since been remedied by the promulgation of its Resolution dated August 16, 2007, recognizing that it no longer has jurisdiction over the disqualification cases following the valid proclamation of Limkaichong and her assumption of office as a Member of the House of Representatives. V Whether the Speaker of the House of Representatives may be compelled to prohibit Limkaichong from assuming her duties as a Member of the House of Representatives. Biraogo's contention was that De Venecia 73 should be stopped from entering Limkaichong's name in the Roll of Members of the House of Representatives because he has no power to allow an alien to sit and continue to sit therein as it would amount to an unlawful exercise of his legal authority. Moreover, Biraogo opposes Limkaichong's assumption of office in the House of Representatives since she is not qualified to sit therein, being a Chinese citizen and, thus, disqualified by virtue of a final and executory judgment of the COMELEC En Banc. He relied on the COMELEC En Banc Resolution dated June 29, 2007, which affirmed the COMELEC Second Division

Joint Resolution dated May 17, 2007 disqualifying Limkaichong from holding public office. He contended that the said Resolution dated June 29, 2007 is already final and executory; hence, it should be respected pursuant to the principle of res judicata. IaAScD De Venecia, on the other hand, argued that he should not be faulted for honoring the proclamation of Limkaichong, because it had the hallmarks of regularity, and he had no power to exclude any Member of the House of Representatives motu proprio. In their Comment on the petition, respondents De Venecia, et al., contended that the enrollment of a Member in the Roll of Members of the House of Representatives and his/her recognition as such becomes the ministerial duty of the Secretary General and the House of Representatives upon presentation by such Member of a valid Certificate of Proclamation and Oath of Office. ECTIHa Respondent Nograles, as De Venecia's substitute, filed a Memorandum dated July 16, 2008 stating that under the circumstances, the House of Representatives, and its officials, are without recourse except to honor the validity of the proclamation of Limkaichong until the same is canceled, revoked or nullified, and to continue to recognize her as the duly elected Representative of the First District of Negros Oriental until it is ordered by this Court, as it was in Codilla, to recognize somebody else. He went on to state that after assumption by the Member-elect, or having acquired a presumptively valid title to the office, the House of Representatives cannot, motu proprio, cancel, revoke, withdraw any recognition given to a sitting Member or to "remove" his name from its roll, as such would amount to a removal of such Member from his office without due process of law. Verily, it is only after a determination by the appropriate tribunal (as in this case, the HRET), pursuant to a final and executory order, that the Member does not have a right to the office (i.e., not being a duly elected Member), that the House of Representatives is directed to exclude the said Member. TDCAHE Their contentions are meritorious. The unseating of a Member of the House of Representatives should be exercised with great caution and after the proper proceedings for the ouster has been validly completed. For to arbitrarily unseat someone, who obtained the highest number of votes in the elections, and during the pendency of the proceedings determining one's qualification or disqualification, would amount to disenfranchising the electorate in whom sovereignty resides. 74 WHEREFORE, premises considered, the petition in G.R. Nos. 178831-32 is GRANTED and the Joint Resolution of the COMELEC Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 is REVERSED and SET ASIDE. All the other petitions (G.R. Nos. 179120, 179132-33, 179240-41) are hereby DISMISSED. HaECDI SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Corona, Carpio Morales, Tinga, Chico-Nazario, Nachura, Leonardo-de Castro and Brion, JJ., concur.

Austria-Martinez, J., is on leave. Velasco, Jr., J., Pls. see dissenting opinion. Separate Opinions VELASCO, JR., J., dissenting: With due respect to the ponente, I register my dissent in G.R. No. 178831-32: ACDTcE COMELEC, on May 7, 2001, issued a Resolution No. 4116 which reads: This pertains to the finality of the decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). Special Action cases refer to the following: (a) (b) (c) (d) Petition to deny due course to a certificate of candidacy; Petition to declare a candidate as a nuisance candidate; Petition to disqualify a candidate; and Petition to postpone or suspend an election. HSIADc

Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES as it is hereby RESOLVED, as follows: (1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) from * its promulgation unless restrained by the Supreme Court. The Commission En Banc Resolution affirming that of the Second Division was promulgated on June 29, 2007. Petitioner received a copy of the resolution on July 3, 2007 and had until July 8, 2007 within which to obtain a restraining order from this Court to prevent the assailed resolution from attaining finality. Instead of filing a petition before this Court with a prayer for a restraining order, Limkaichong opted to file a Manifestation and Motion for Clarification before the COMELEC En Banc. This procedural lapse is fatal as her motion with the COMELEC En Banc did not toll the running of the five (5)-day reglementary period. Thus, the June 29, 2007 COMELEC En Banc Resolution has become final and executory. CDAcIT On the other hand, petitioner Limkaichong argues that the COMELEC was divested of jurisdiction over the disqualification case when she was proclaimed by the Provincial Board of Canvassers on May 25, 2007. She insists that jurisdiction is now exclusively vested in the HRET under Section 17, Article VI of the 1987 Constitution, which provides:

The Senate and the House of Representatives shall each have an Electoral tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. . . . This posture will not also prevent the June 29, 2007 Resolution of the COMELEC En Banc from becoming final and executory. When petitioner received a copy of the assailed resolution, she should have instituted an action before the HRET to challenge the legality of the said resolution affirming her disqualification. CHDAaS This, she failed to do. On August 16, 2007, the COMELEC En Banc ruled on Limkaichong's manifestation and motion for clarification, thus: In view of the proclamation of Limkaichong and her subsequent assumption of office on June 30, 2007, this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal in accordance with the above-quoted provision of the Constitution. WHEREFORE, premises considered, this Commission resolved, as it hereby resolves, that all pending incidents relating to the qualifications of Jocelyn S. Limkaichong as Member of the House of Representatives should now be determined by the House of Representatives Electoral tribunal. THaDEA SO ORDERED. (Emphasis ours) Despite the clear direction from the COMELEC En Banc, petitioner again failed to institute the necessary action before the HRET to contest the June 29, 2007 Resolution within ten (10) days from receipt of the August 16, 2007 COMELEC Resolution. Around seven (7) months had lapsed from promulgation of the August 16, 2007 ruling of the COMELEC and petitioner has not lifted a finger to challenge the June 29, 2007 COMELEC En Banc Resolution in question. Plainly, said resolution has become final and executory. I vote to DISMISS Limkaichong's petition in G.R. Nos. 178831-32. Footnotes 1. 2. 3. 4. 5. Rollo (G.R. Nos. 178831-32), pp. 24-36. Id. at 53-66. Id. at 181-183. Id. at 74. Id. at 75-77. DTEAHI TSacAE

6. 7.

Id. at 82-87. Id. at 100-144.

8. G.R. No. 135886, August 16, 1999, 312 SCRA 447. The Court held that in order to justify the cancellation of the certificate of candidacy under Section 78 of the Omnibus Election Code, it is essential that: (1) the false representation mentioned therein pertains to a material matter on the contents of the certificate of candidacy as provided in Section 74 (or the qualification for elective office as provided in the Constitution); and (2) the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. IaSCTE 9. Section 78 of the OEC reads:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election. 10. Section 74 of the OEC pertains to the contents of a certificate of candidacy: DEaCSA Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. HITEaS Unless a candidate has officially changed his name through a court approved proceeding, a candidate shall use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more

candidates for an office with the same name and surname, each candidate, upon being made aware of such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. 11. 12. Batas Pambansa Blg. 881, approved on December 3, 1985. Section 68 of OEC provides: CacEID

SEC. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. HAICET 13. Section 1, Rule 25, 1993 COMELEC Rules of Procedure reads:

SEC. 1. Grounds for Disqualification. Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. 14. 15. Approved on February 15, 1993. Section 5, paragraph C (3.a), COMELEC Resolution No. 7800 states: 3.a. Disqualification under existing election laws. (a) (b) country; (c) For lack of the required age; aEHIDT

For not being a citizen of the Philippines; For being a permanent resident of or an immigrant to a foreign

(d) (e) (f)

For lack of residence; For not being a registered voter; For not being able to read and write;

(g) In case of a party-list nominee, for not being a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days immediately preceding the day of the election. DHITSc 16. Entitled "Rules Delegating to the COMELEC Officials the Authority to Hear and Receive Evidence in Disqualification Cases filed in connection with the May 14, 2007 National and Local Elections" dated January 5, 2007. 17. Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong, Respondent. 18. Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong, Respondent. 19. 20. 21. Rollo (G.R. Nos. 178831-32), p. 152. Rollo (G.R. Nos. 179132-33), p. 103. Id. at 135-141. aCHcIE

22. Rollo (G.R. Nos. 178831-32), pp. 24-35. The per curiam Joint Resolution was unanimously signed by Commissioners Florentino A. Tuason, Jr. (ret.), Rene V. Sarmiento and Nicodemo T. Ferrer. 23. 24. Id. at 30-35. (Emphasis ours). Rollo (G.R. Nos. 179132-33), pp. 168-169, 201.

25. Rollo (G.R. Nos. 178831-32), pp. 145-146. The resolution is entitled "In the Matter of Adopting the Following Policy-Guidelines on: 1) the Proclamation of Winning Candidates with Pending Disqualification Cases; 2) Suspension of Canvassing and/or Proclamation; and 3) Transfer of Canvassing Venue," the pertinent portion of which is quoted as follows: HEITAD The Commission, in upholding the sovereign will of the people and in the interest of justice and fair play, RESOLVED as it hereby RESOLVES, to adopt the following policy-guidelines in connection with the May 14, 2007 National and Local Elections: 1. No suspension of proclamation of winning candidates with pending disqualification cases

There shall be no suspension of proclamation of winning candidates with pending disqualification cases before or after elections, involving issues of citizenship, non-residency, not being a registered voter, nuisance candidate, and/or violation of the election laws under Section 68 of the Omnibus Election Code, Fair Elections Act and other related election laws. This policy however shall be without prejudice to the continuation of the hearing and resolution of the involved cases. AcICHD 26. 27. 28. 29. 30. Rollo (G.R. Nos. 179132-33), pp. 37-52. Id. at 147-149. Rollo (G.R. Nos. 179132-33), pp. 158-162. Rollo (G.R. Nos. 178831-32), p. 152. Rollo (G.R. Nos. 179132-33), pp. 165-192.

31. Id. at 328-334. The Resolution was penned by the late Commissioner Romeo A. Brawner and concurred in by Commissioner Resurreccion Z. Borra (ret.). 32. Id. at 215-236. The COMELEC First Division denied Paras' motion on January 28, 2008 through an Omnibus Order. (Rollo [G.R. Nos. 178831-32], pp. 463-467.) IDSaTE 33. Rollo (G.R. Nos. 178831-32), pp. 53-66. In the per curiam Resolution, then COMELEC Chairman Benjamin A. Abalos, Sr., Commissioners Rene V. Sarmiento and Nicodemo T. Ferrer voted for the denial of Limkaichong's motion. The late Commissioner Romeo A. Brawner (also a former Presiding Justice of the Court of Appeals) wrote a dissenting opinion, which was concurred with by retired Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr., to the effect that Limkaichong's motion should be dismissed by the COMELEC for lack of jurisdiction. 34. 35. 36. Id. at 61-63. (Emphasis ours). Id. at 159-163. AICDSa

Section 6, Rule 18, COMELEC Rules of Procedure provides:

SEC. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. 37. Rollo (G.R. Nos. 179132-33), pp. 213-214. CcSTHI

38.

Id. at 238-256.

39. Rollo (G.R. Nos. 178831-32), pp. 166-171. On July 5, 2007, Limkaichong filed an Urgent Motion to Resolve the Manifestation and Motion for Clarification. On July 11, 2007, she filed a Second Motion to Resolve said manifestation and motion. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. Id. at 3-20. Id. at 181-183. Rollo (G.R. No. 179120), pp. 3-21. Id. at 19-20. Rollo (G.R. Nos. 179132-33), pp. 3-70. Id. at 69-70. Rollo (G.R. Nos. 178831-32), pp. 468-470. Id. at 471-481. Rollo (G.R. Nos. 179240-41), pp. 3-28. Supra note 41. COMELEC Rules of Procedure, Rule 19, Sec. 2. 442 Phil. 139 (2002). Section 17, Article VI, 1987 Constitution provides: EDACSa

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior justice in the Electoral Tribunal shall be its Chairman. HTCaAD 53. Section 2 (2), Article IX-C, 1987 Constitution provides: The Commission on Elections shall exercise the following powers xxx xxx

Sec. 2. and functions: xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective, regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. CSIcTa 54. Section 6, RA 6646, otherwise known as "An Act Introducing Additional Reforms in the Electoral System and for other Purposes", states: SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. HTcDEa 55. Section 241 of the OEC provides:

SEC. 241. Definition. A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns. 56. Section 243 of the OEC provides:

SEC. 243. Issues that may be raised in pre-proclamation controversy. The following shall be proper issues that may be raised in pre-proclamation controversy: CEASaT (a) Illegal composition or proceedings of the board of canvassers.

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code. (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

(d) When the substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. aIHSEc 57. Villarosa v. Commission on Elections and Atty. Dan Restor, 377 Phil. 497, 506 (1999), citing the Concurring Opinion of Justice Antonio in University of Nueva Caceres v. Martinez, 56 SCRA 148 (1974). 58. 59. Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986). Section 3, Article IX-C, 1987 Constitution provides:

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. 60. G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537.

61. Vinzons-Chato v. Commission on Elections, G.R. No. 172131, April 2, 2007, 520 SCRA 166, 179, citing Aggabao v. Commission on Elections, 449 SCRA 400, 404-405 (2005); Guerrero v. Commission on Elections, 391 Phil. 344, 352 (2000). cSaCDT 62. SEC. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. 63. Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul v. Commission on Elections, 371 Phil. 760, 766 (1999). 64. Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338. ITaESD 65. 66. 67. 68. 69. 70. Supra note 61, at 180. G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44. G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied) G.R. Nos. L-25204 & L-25219, January 23, 1970, 31 SCRA 52, 58. Rollo p. 97. Id. at 172 and 175. IcDCaS

71. Section 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. 72. Soriano, Jr. v. Commission on Elections, G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 80, 107, citing Reyes v. RTC of Oriental Mindoro, 313 Phil. 727, 734 (1995). 73. When Speaker Jose de Venecia, Jr. was replaced by Speaker Prospero Nograles, petitioner Biraogo filed with the Court a Respectful Manifestation with Motion to Replace Respondent Jose de Venecia, Jr. with Prospero C. Nograles, praying that the latter will replace the former as party-respondent in G.R. No. 179120, which the Court granted in its Resolution dated April 1, 2008. HTSAEa 74. See Codilla v. De Venecia, 442 Phil. 139 (2002).

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G.R. No. 177162 March 31, 2009 PEOPLE OF THE PHIL. vs. ROBERTO PAJABERA SECOND DIVISION [G.R. No. 177162. March 31, 2009.] PEOPLE OF THE PHILIPPINES, appellee, vs. ROBERTO PAJABERA y DOE, appellant. DECISION CARPIO MORALES, J p: On appeal is the December 22, 2006 Decision of the Court of Appeals in CA-G.R. CRH.C. 01437 1 affirming the July 7, 2005 Decision of Branch 63 of the Regional Trial Court of Calabanga, Camarines Sur in Criminal Case No. RTC '03-878, finding Roberto Pajabera (appellant) guilty beyond reasonable doubt of Murder. STcADa The Information dated November 5, 2003 charging appellant with Murder reads: That on or about the 29th day of May, 2003 at about 2:30 P.M., in Barangay Pag-asa, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent to take the life of one MAJEN B. BOLANOS, with treachery and evident premeditation, did then and there, willfully, unlawfully, feloniously and suddenly attack, assault and stab the latter from behind with a "balisong", fatally hitting the latter on his neck and other parts of his body,

which caused the instantaneous and direct death of the said MAJEN B. BOLANOS, to the great damage and prejudice of his heirs, in such amount as may be proven in court. 2 On arraignment, appellant pleaded not guilty. 3 Culled from the testimonies of Efren Basi (Basi) 4 and Ceferino Barcillano (Barcillano) 5 is the following version of the prosecution: cCAIaD On May 29, 2003 at around 2:30 in the afternoon, Majen B. Bolanos (the victim) was at the cockpit arena at Barangay Pag-asa, Tinambac, Camarines Sur to watch the scheduled cockfighting event that was part of the barangay fiesta celebrations. Appellant, who was also present thereat, called the victim from behind. When the victim turned around, appellant placed one hand on the victim's shoulder. The victim thereafter fell on the ground and blood oozed from his shoulder. Basi, who was standing beside the victim, and Barcillano, soon realized that appellant had stabbed the victim. cAISTC Appellant quickly pulled out the knife from the victim's shoulder, and left. At this juncture, the people at the cockpit arena scampered, and the cockfighting event did not push through. Dr. Salvador Betito (Dr. Betito), Municipal Health Officer of Tinambac, Camarines Sur, who conducted a medico-legal necropsy examination on the body of the victim about two or three days after the incident, 6 concluded that the cause of the death of the victim was rapid internal and external hemorrhage secondary to a deep penetrating stab wound measuring 1.5 cm. and .5 cm. on his right shoulder, which could have been caused by anything pointed and sharp like a knife. 7 ICESTA Appellant, admitted having stabbed the victim. He, however, claimed self-defense. By his account, he and the victim had wagered with each other for P300 on the result of the cockfight, and he won. 8 When he tried to collect his winning, however, the victim refused to pay; instead, the victim pulled out a bladed instrument and attacked him with it. 9 2009jur Continued appellant: While he ran away from the victim, fell on the ground face down, and as he turned around, the victim promptly knelt down and stabbed him. 10 He was able to parry the blow by holding the victim's hand, after which the two of them grappled for possession of the bladed instrument. 11 Further, appellant related that in the course of the scuffle, while he was lying with his back on the floor and the victim was stooping down on him in a kneeling position, he (appellant), accidentally pushed the bladed instrument being then held by the victim towards the latter. 12 He then saw blood oozing from the victim's body, but he was not sure which part, 13 drawing him to flee out of fear. 14 cCESaH

Salvador Habulin (Habulin), who claimed to have witnessed the incident at a distance of about three meters, 15 corroborated appellant's account. The trial court, crediting the testimonial evidence for the prosecution vis a vis the findings of Dr. Betito, 16 convicted appellant of Murder, qualified by treachery, disposing as follows: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of accused Roberto Pajabera y Doe beyond reasonable doubt, he is hereby found guilty of the crime of murder as charged. He is sentenced to suffer the penalty of Reclusion Perpetua and to pay the heirs of Majen Bolanos the amount of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P10,000.00 as actual damages and to pay the costs. Accused is likewise meted the accessory penalty of perpetual absolute disqualification as provided in Article 41 of the Revised Penal Code. ITSCED Considering that herein accused has undergone preventive imprisonment, he shall be credited in the service of his sentence with the time he has undergone preventive imprisonment subject to the conditions provided for in Article 29 of the Revised Penal Code. 17 Rejecting appellant's claim of self-defense, the trial court found it improbable that the victim could be accidentally hit on the shoulder with the knife during the respective positions of the parties as described by appellant. 18 If, posed the trial court, the victim was indeed kneeling and stooping down on appellant who was lying with his back flat on the ground prior to the fatal blow, the victim could have been hit on the chest or the stomach, but not on the shoulder. 19 The trial court found that the killing was attended by treachery, the suddenness of the attack having deprived the unarmed victim of any means to defend himself. 20 It ruled out evident premeditation, however, there being no proof of when appellant conceived of killing the victim. 21 DHaECI On appeal, the Court of Appeals, by Decision of December 22, 2006, 22 affirmed that of the trial court, holding that appellant failed to discharge the burden of proving selfdefense by clear and convincing evidence. Appellant thus comes before this Court.

Both appellant and the Solicitor General manifested that they were dispensing with the filing of supplemental briefs and submitting the case for decision based on the Briefs they had filed with the appellate court. 23 The appeal fails. What appellant essentially wants is for this Court to weigh the credibility of the prosecution witnesses against that of the defense witnesses and review the observations and conclusions of the trial and appellate courts. CIaASH

It is settled that the issue of credibility is a question best addressed to the trial court, and that its findings of fact, especially when affirmed by the appellate court as in the present case, are accorded the greatest respect in the absence of a showing that it ignored, overlooked, or failed to properly appreciate matters of substance or importance likely to affect the results of the litigation. 24 Independently of the factual findings of the lower courts, this Court, in its review of the records, found the findings in order. Appellant would have it that he was lying with his back flat on the floor while the victim was kneeling and stooping down on him holding the knife. Given that, the thrust of the knife could only have been downwards pointing to appellant. Even assuming that appellant was able to twist the victim's hand which held the knife, it was unlikely that appellant could "accidentally" stab the victim on the right shoulder. aDcTHE The Court notes that the testimony of Habulin, the defense's so-called "eyewitness", bears lapses on material points: xxx xxx xxx

DIRECT EXAMINATION: xxx Q xxx xxx

Then what happened when the two ran after each other?

A Roberto fell down and at that juncture Roberto was able to get hold of the right hand of Majen. Q A Then what happened when Roberto got hold of the right hand of Majen? This Majen was hit by the bladed weapon that he himself was holding.

Q When you said Berto and Roberto as you mentioned the person who was ran after by Majen, was he the same Roberto Pajabera the accused in this case? HSDaTC A Yes, Sir.

Q After that, what happened, after you saw that bladed weapon being held by Majen struck [sic] him while the two were grappling with each other, what happened next? A xxx The people scampered. xxx xxx

CROSS EXAMINATION:

xxx

xxx

xxx

Q And how about Roberto, where he was [sic], while you were as you said that [sic] you are at the fence? DEAaIS A xxx Q A Roberto was lying back flat on the ground with his enemy on top of him. xxx xxx

And Roberto fell down, when Roberto fell down, did Roberto stood [sic] up? After the victim was hit that is the time that Roberto left.

Q Just answer my question whether or not when Roberto fell down after which he stood up or not [sic]? A Yes, Sir.

Q Then when he stood up that is the time that you said they grappled with the knife, correct? TcCEDS A Yes, Sir.

Q And when you said that Majen was hit, they were standing position [sic], correct? A When Majen fell down because he was already hit, Roberto left.

Q So it is clear from your testimony that when they were grappling in a standing position, that's the time when Majen was hit and Majen fell down, correct? 2009jur ATTY. NACIONAL: Misleading, Your Honor. There was no testimony that they were grappling in a standing position. PROS. OLIVEROS: Yes, there is already. COURT: They were standing. Both of them were standing. xxx COURT: Alright for clarification. Alright, answer. Translate. xxx xxx

A They were both lying on the ground and Roberto was lying flat and Majen on his top when they were grappling for the possession of the deadly weapon. 25 (Underscoring supplied.) IcSHTA First, on direct examination, Habulin did not positively state that the victim was hit with the knife while grappling with appellant for its possession. The "grappling" part was only inserted in a subsequent question by counsel for the defense. Second, on cross examination, Habulin was tentative on whether appellant and the victim were lying on the ground or standing while "grappling" for possession of the knife. He only remembered the version of appellant, which he was supposed to corroborate, when counsel for the defense led him to restate the same by objecting to the prosecution's question confirming his most recent statement that the "grappling" took place while appellant and the victim were standing. To the Court, these lapses in Habulin's testimony cast serious doubt upon his claim that he witnessed the incident. It bears emphasis that the turn of events, particularly the respective position of appellant and the victim before the fatal blow, is crucial in view of appellant's claim of self-defense. Hence, the trial and appellate courts did not err in crediting the version of the prosecution. cIHSTC That there is no evidence of any dubious reason or improper motive why prosecution witnesses would testify falsely against appellant or falsely implicate him in a heinous crime renders their testimonies worthy of full faith and credit. 26 Parenthetically, although the incident occurred in a public place, why was appellant only able to present one supposed "eyewitness" who even, as reflected above, contradicted himself? IHCacT Appellant's attack having been made in a swift and unexpected manner on the unsuspecting and unarmed victim who did not give the slightest provocation, treachery attended the killing. 27 Perforce, appellant's conviction for Murder stands. Since treachery qualified the killing to Murder and absent any aggravating or mitigating circumstances, the penalty of reclusion perpetua is proper, applying Article 63 of the Revised Penal Code. 28 Reclusion perpetua carries with it the accessory penalty of perpetual absolute disqualification. 29 cDEHIC On the civil aspect of the case, the Court finds the awards of P50,000 as civil indemnity and P50,000 as moral damages in order based on prevailing jurisprudence. 30 Instead of actual damages, the Court awards temperate damages of P25,000 31 as the actual damages claimed by the prosecution and admitted by appellant amount to P10,000 32 or less than P25,000. The award of exemplary damages in the amount of P25,000 is additionally in order if, as here, there is present an aggravating circumstance (qualifying-treachery) in the commission of the crime. 33 The Court thus grants the same.

WHEREFORE, the December 22, 2006 Decision of the Court of Appeals affirming that of Branch 63 of the Regional Trial Court of Calabanga, Camarines Sur is MODIFIED in that temperate damages of P25,000 in lieu of P10,000 actual damages, and exemplary damages of P25,000 are AWARDED. In all other respects, the challenged Decision is AFFIRMED. CITDES SO ORDERED. Quisumbing, Tinga, Velasco, Jr. and Peralta, * JJ., concur. 2009jur Footnotes 1. Penned by Associate Justice Arturo G. Tayag, with the concurrence of Associate Justices Remedios A. Salazar-Fernando and Noel G. Tijam. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. Records, p. 1. Id. at 28. IDScTE

TSN, August 3, 2004, pp. 2-6. TSN, August 17, 2004, pp. 2-5. TSN, August 18, 2004, p. 4. Id. at 4-5. TSN, September 1, 2004, pp. 3-4. Id. at 4-5. Ibid. ITSCED

Id. at 6. Ibid. Id. at 6-7. Ibid. TSN, September 7, 2004, pp. 3-5. Records, p. 71. Id. at 77-78. Id. at 74. Ibid. ICDcEA

20. 21. 22. 23.

Id. at 76. Id. at 77. CA rollo, pp. 110-120. Rollo, pp. 17-21.

24. Vide De Guia v. Court of Appeals, G.R. No. 120864, October 8, 2003, 413 SCRA 114, 129; Producers Bank of the Philippines v. Court of Appeals, G.R. No. 115324, February 19, 2003, 397 SCRA 651, 658-659. EICSDT 25. 26. TSN, September 7, 2004, pp. 4-10. Vide People v. Bacungay, G.R. No. 125017, March 12, 2002, 379 SCRA 22, 31.

27. Vide People v. Bermas, G.R. Nos. 76416 and 94312, July 5, 1999, 309 SCRA 741, 778. 28. ART. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. AcIaST In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. ACcTDS 4. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. (Emphasis supplied) IEAacT 29. 30. Art. 41, REVISED PENAL CODE. People v. Balais, G.R. No. 173242, September 17, 2008.

31. Vide People v. Villanueva, G.R. No. 139177, August 11, 2003, 408 SCRA 571, 581-582, wherein the Court held:

[W]hen actual damages proven by receipts during the trial amount to less than P25,000, as in this case, the award of temperate damages for P25,000 is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages proven exceeds P25,000, then temperate damages may no longer be awarded; actual damages based on the receipts presented during trial should instead be granted. IETCAS 32. 33. Vide records, p. 43. People v. Balais, supra note 30.

* Additional member per Special Order No. 587 dated March 16, 2009 in lieu of the leave of absence due to sickness of Justice Arturo D. Brion. HTCAED

C o p y r i g h t 2 0 0 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 174483 March 31, 2009 PEOPLE OF THE PHIL. vs. RAMON REGALARIO, ET AL. EN BANC [G.R. No. 174483. March 31, 2009.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMON REGALARIO, MARCIANO REGALARIO, SOTERO REGALARIO, BIENVENIDO REGALARIO and NOEL REGALARIO, accused-appellants. DECISION LEONARDO-DE CASTRO, J p: For automatic review is the decision 1 of the Court of Appeals (CA) in CA-G.R. CR No. 01556 which affirmed with modification, an earlier decision 2 of the Regional Trial Court of Ligao, Albay, Branch 13 in Criminal Case No. 3613, finding accusedappellants Ramon, Marciano, Sotero, Bienvenido and Noel, all surnamed Regalario guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to indemnify jointly and severally the heirs of the victim in the amount of P50,000.00, and another sum of P50,000.00 as moral damages and to pay the costs of the proceedings. HAEDIS In the court of origin, accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel were originally charged with Homicide. However, after reinvestigation of the case, the Panel of Prosecutors of the Department of Justice, Legaspi City, consisting of State Prosecutors Romulo SJ Tolentino, Mary May B. de Leoz and Elmer M. Lanuzo

filed an amended information 3 charging the accused-appellants with murder, committed as follows: That on February 22, 1997 at about 11:00 in the evening, at Brgy. Natasan, Municipality of Libon, province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously with cruelty, treachery, abuse of superior strength, nighttime attack, assault, strike and hit ROLANDO SEVILLA with wooden clubs (bahi) used as their night sticks, hitting the latter at the different parts of his body and tying down his hands and feet with a rope, thereby inflicting upon the latter serious and mortal wounds which directly caused his death, to the damage and prejudice of his legal heirs. DSTCIa ACTS CONTRARY TO LAW.2009jur On October 9, 1998, accused-appellants, duly assisted by their counsel, entered a plea of "not guilty" to the offense charged. 4 Thereafter, trial ensued. The prosecution presented the following as its witnesses: Zaldy Siglos, Nancy Sara, Ryan Sara, Armando Cabais Poblete, Ronnie Siglos, Cynthia Sevilla, Norma Torres, Policeman Jose Gregorio, Cenen Talagtag, Cesar Sazon and Dr. Mario Cerillo, while Antonio Relato and Nicanor Regonia testified on rebuttal. Nancy Sara, Cynthia Sevilla and Ryan Sara were presented for a second time also as rebuttal witnesses. On their part, accused-appellants took the witness stand. All raised the defense of denial except for Ramon who admitted the act charged but claimed self-defense. To corroborate their defense, Jose Poblete and Adonis Velasco were presented. The defense also presented Senior Police Officer 2 (SPO2) Jimmy Colisao, Harold Reolo, Ma. Julieta Razonable, and Dr. Leopoldo Barrosa II. IDTHcA On August 24, 2000, the trial court rendered its decision 5 giving full faith and credit to the prosecution's evidence. It ruled out accused-appellant Ramon Regalario's claim of self defense, and held that there was conspiracy among the accused-appellants in the commission of the crime as shown in the manner in which all of them inflicted the wounds on the victim's body. It further ruled that the killing was qualified to murder by abuse of superior strength and by their scoffing at the body of the victim. It also appreciated the presence of the mitigating circumstance of voluntary surrender. The pertinent dispositive portion of the said decision reads: WHEREFORE, judgment is hereby rendered finding Ramon, Sotero, Bienvenido, Marciano and Noel, all surnamed Regalario, guilty beyond reasonable doubt of the crime of Murder under Par. 1, of Art. 248 of the Revised Penal Code, as amended, with the aggravating circumstance of scoffing at the corpse of the victim. However, accused are entitled to the benefit of the mitigating circumstance of voluntary surrender which offset the aggravating circumstance of scoffing at his corpse, hence,

are hereby sentenced to suffer the Penalty of Reclusion Perpetua together with the accessory penalties provided for by law. cCTAIE The accused are hereby ordered to indemnify jointly and severally the heirs of the late Rolando Sevilla the amount of P50,000.00 and another sum of P50,000.00 as moral damages and to pay the costs. Pursuant to Supreme Court Administrative Circular No. 2-92 the P200,000.00 bail bond put up by accused Marciano Regalario is hereby cancelled and is ordered recommitted to jail. SO ORDERED. The record of this case was forwarded to this Court for automatic review, in view of the penalty imposed. In our Resolution 6 of August 13, 2001, We accepted the appeal and directed the Chief of the Judicial Records Office, to send notices to the parties to file their respective briefs. The Court also required the Jail Warden, Municipal Jail, Polangui, Albay to transfer accused-appellants to the Bureau of Corrections, Muntinlupa City, and make a report of such transfer within ten (10) days from notice. Likewise, the Director of the Bureau of Corrections was required to confirm the detention of accused-appellants. Accused-appellants filed their Appellants' Brief 7 on December 4, 2001, while the People, thru the Office of the Solicitor General, filed its Appellee's Brief 8 on July 30, 2002. HaIATC Pursuant to our pronouncement in People v. Mateo 9 which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was referred for appropriate action and disposition to the CA where it was docketed as CA-G.R. No. 01556. The evidence for the prosecution is summarized by the Office of the Solicitor General, as follows: Accused-appellants, all surnamed Regalario, are barangay officials of Natasan, Libon, Albay and related to one another by consanguinity. Marciano, barangay chairman, Sotero, barangay kagawad and Ramon, barangay tanod, are brothers while Bienvenido Regalario, also barangay tanod, is their cousin and Noel is the son of Marciano. (TSN, November 16, 1998, p. 9; RTC Order dated October 9, 1998, pp. 115117) SIDEaA On the night of February 22, 1997, a dance and singing contest was being held in the barangay pavilion of Natasan, Libon, Albay. At around ten o'clock that evening, Rolando Sevilla and Armando Poblete were enjoying the festivities when appellant Sotero Regalario approached them (TSN, December 7, 1998, p. 4). To avoid trouble, the two distanced themselves from Sotero. Nevertheless, a commotion ensued. (ibid.,

p. 5). Appellants Sotero and Bienvenido Regalario were seen striking Rolando Sevilla several times with their respective nightsticks, locally known as bahi. (TSN, November 16, 1998, pp. 13-17, 32, 34, 36-37). The blows caused Sevilla to fall down in a sitting position but after a short while he was able to get up (ibid., pp. 16-17). He ran away in the direction of the house of appellant Mariano Regalario, the barangay captain (ibid., pp. 18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid., p. 38, TSN, December 7, 1998. p. 6). When Sevilla was already near Marciano's house, he was waylaid by appellant Ramon Regalario and at this point, Marciano Regalario and his son Noel Regalario came out of their house (TSN, December 7, 1998, pp. 7-9 and 35). Noel was carrying a seven-inch knife. The five appellants caught the victim in front of Marciano's house. Armed with their nightsticks, they took turns in hitting the victim until he slumped to the ground face down (ibid., pp. 8, 35 and 38). In that position, Sevilla was boxed by Marciano in the jaw. After a while, when Sevilla was no longer moving, Marciano first ordered the others to kill the victim and to tie him up (ibid., pp. 36-37). Upon hearing the order, Bienvenido, with the help of Sotero, tied the neck, hands and feet of the victim with a nylon rope used by farmers for tying carabao. The rest of the group just stood by watching. (ibid., pp. 37-38). In the early morning of February 23, 1997, Cynthia Sevilla, the victim's widow, after she was informed of her husband's death, went to the poblacion of Libon to report the incident at the town's police station (TSN, December 8, 1998, pp. 7-8). However, her statements were not entered in the police blotter because appellant Marciano Regalario had earlier reported to them, at two o'clock in the morning, a different version of the incident, i.e., it was the victim Sevilla who shot Marciano's brother Ramon and that Sevilla, allegedly still alive, was placed under the custody of the barangay tanods. (ibid., p. 7; TSN, November 20, 1998 [A.M. Session], pp. 9-10). At around eight o'clock of the same morning, SPO4 Jose Gregorio, with some other police officers and Cynthia Sevilla, left the police station on board a truck and proceeded to the crime scene in Natasan. SPO4 Gregorio conducted an investigation of the incident. (TSN, November 20, 1998 [A.M. Session], pp. 10-12). Thereafter, the policemen took the victim's cadaver to the police station in the poblacion (ibid., p. 26) where pictures were taken showing the victim's hands and legs tied behind him [Exhibits 'C' and 'D'] (ibid., pp. 14-15; TSN, December 8, 1998, p. 10; TSN, November 20, 1998 [P.M. Session], pp. 5-7). On that same day, SPO4 Gregorio requested the Libon's Rural Health Unit to conduct an autopsy on the victim's body but since the municipal health officer was not around, it was only performed the next day, February 24 (TSN, November 20, 1998 [A.M. Session], p. 26; TSN, December 8, 1998, pp. 1011; TSN, November 20, 1998 [P.M. Session], p. 11). After Dr. Mario Cerillo, Municipal Health Officer of Libon conducted the autopsy, he forthwith issued a Medico-Legal Report dated February 24, 1997 (Exhibit 'B'), the pertinent portions of which read: cCHETI Findings: Head : Lacerated wound 4 cm

frontal area, Right. : Lacerated wound 8 cm.

occipital area, Right. : Lacerated wound 4 cm.

with fractured skull (post auricular area), Right. : Abrasion 4 x 2 cm.

eyebrow, Right. : Abrasion 2 cm. x 1 cm.

with lacerated wound 1 cm. eyebrow, Left. : Periorbital Hematoma

Left and Right eye. : Lacerated wound 1 cm.

lower lip, Left. Neck : Stab wound 2 cm.

penetrating lateral base of the neck just above the clavicle, Right. : Stab wound 2 cm., 6 cm.

depth lateral base of the neck just above the clavicle, Right. Trunk : Hematoma 10 x 8 cm.

clavicular area, Right.

: :

Multiple abrasion chest Contusion 7 x 2 cm.,

7th Intercorsal space and clavicular line, left. Extremities : Multiple abrasion and

contusion on both Right and Left arm and forearm. : Abrasion (Ropemark)

around Right and Left wrist. : Abrasion (Ropemark) around

distal 3rd of both Right and Left leg. xxx Cause of Death: Sever * blood loss secondary to stab wound and multiple lacerated wound, probably secondary to intracranial hemorrhage. DHcESI On the witness stand, Dr. Cerillo opined that the victim's lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or iron bar, his stab wounds by a sharp-edged instrument or knife, his contusions and hematoma by a fist blow or through contact with a blunt instrument. Also according to the physician, the sharp object which caused the victim's stab wounds could have been a knife 2 cm. wide and 6 cm. long because they were clean cut wounds. (TSN, November 20, 1998 [P.M. Session], pp. 14-15). 10 On the other hand, the accused-appellants' Brief presents a different story: At the time of the incident in question, accused Marciano Regalario was the incumbent barangay captain of Natasan, Libon, Albay. Accused Sotero was a kagawad, while Ramon and Bienvenido were barangay tanods of the same place. Noel Regalario had no public position. He is the son of one of the other accused. On the night of February 22, 1997, a public dance and singing contest was held in their barangay. Naturally, being barangay officials, the accused, (except Noel who is not an official and whose wife has just given birth) were at the place of the xxx xxx

celebration, discharging their peace-keeping duties. They were posted at different places in that vicinity. HcaDIA At first, a fire broke out in the toilet of the Day Care Center. It was attended to by the persons assigned in that area. A while later, there was another commotion in the area assigned to accused Ramon Regalario. When he approached the group where the disturbance was taking place and tried to investigate, Rolando Sevilla suddenly emerged from the group and without any ado, fired a shot at him. He was hit at the left shoulder. Instinctively, and in order to disable Sevilla from firing more shots, which might prove fatal, he struck his assailant with his nightstick and hit him at the back of his head. This is the blow which Nancy Sara and Zaldy Siglos said were delivered by Sotero and Bienvenido. This blow caused Sevilla to reel backward and lean on the bamboo fence. To prevent Sevilla from regaining his balance, Ramon pressed his counter-attack by continuing to harass him with blows of his nightstick. As Ramon pressed on forward, Sevilla retreated backward. Ramon kept him busy parrying the blows which hit his arms and front part of the body, as they were face to face with each other. But even in the course of such harassment, Sevilla was able to fire a second shot which missed Ramon. When they reached the end of the road pavement, Sevilla lost his footing on edge of the pavement and fell down. At that juncture, Sotero arrived and shouted to Ramon to stop beating Rolando. But Ramon told him that Rolando still had the gun. So, Sotero plunged at Rolando and they wrestled on the ground for the possession of the gun. As they struggled, the gun went off but no one was hurt. When Rolando raised his arms to move the gun away from Sotero, Ramon knocked the gun off his hand and it fell near the place where Jose Poblete was standing. Poblete just arrived at the scene along with Marciano Regalario who was already told that his brother Ramon was shot by Sevilla. Poblete picked up the gun. He was instructed by Marciano to keep it until it is turned over to the authorities. IHCSET The wounded Ramon Regalario was brought to town for treatment and later to the provincial hospital. Marciano and Sotero proceeded to the police station to report the shooting of Ramon. Bienvenido Regalario, the barangay tanod, arrived at the scene after the fact. He was instructed by Marciano, the barangay captain to effect the arrest of Rolando Sevilla for the crime of shooting Ramon. According to Bienvenido, they were taught in their training seminar to just use a rope in lieu of handcuffs because they could not be supplied with it. So, he tied the hands and feet of Rolando Sevilla for fear that he might be able to escape. On the early morning of February 23, a team of policemen went to Natasan and found the dead body of Rolando Sevilla. Jose Poblete also turned over to the police, Rolando Sevilla's gun. Meanwhile, Noel Regalario, after learning of the incident, scoured the

place where the third shot was fired during the struggle between Sotero and Rolando. He found a .38 caliber slug which was also turned over to the police. 11 EADSIa On May 31, 2006, the CA promulgated the herein challenged decision affirming for the most part the decision of the trial court with modification as to the penalty imposed. Unlike the trial court, the CA did not appreciate the mitigating circumstance of voluntary surrender in favor of the accused-appellants. Thus, the penalty was changed from reclusion perpetua to death, and an additional award of P25,000.00 as exemplary damages was likewise imposed. Pertinently, the CA decision reads in part: WHEREFORE, the assailed decision is AFFIRMED with MODIFICATION. The accusedappellants are hereby sentenced to suffer the penalty of DEATH and to pay, jointly and severally, the heirs of Rolando Sevilla the amount of P25,000.00 as exemplary damages. Let the entire records of this case be elevated to the Supreme Court for its review, pursuant to AM No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases) which took effect on October 15, 2004. SO ORDERED. 12 As can be gleaned from the above quote, the CA elevated the instant case to this Court in view of the penalty imposed. In our Resolution 13 dated November 14, 2006, we required the parties to simultaneously submit their respective supplemental briefs. On December 12, 2006, the people filed a manifestation 14 stating that it is waiving the filing of a supplemental brief. Accused-appellants filed their supplemental brief 15 on February 15, 2007. CHATEa In their Brief, accused-appellants raise the following assignment of errors: 1. THE TRIAL COURT ERRED IN HOLDING THAT ALL OF THE ACCUSED PARTICIPATED IN THE KILLING OF ROLANDO SEVILLA AND BASING ITS DECISION, NOT ON DIRECT EVIDENCE BUT ON ITS OWN SUPPOSITIONS, CONJECTURES AND INFERENCES; 2. THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED THE EVIDENCE AND DISPLAYED BIAS WHEN IT LEANED IN FAVOR OF THE PROSECUTION EVIDENCE DESPITE THEIR VITAL CONTRADICTIONS AND OBVIOUS FALSEHOODS; 3. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE ACCUSED AND THAT THE COMMISSION OF THE OFFENSE WAS ATTENDED BY THE QUALIFYING CIRCUMSTANCES OF ABUSE OF SUPERIOR STRENGTH AND SCOFFING AT THE BODY OF THE VICTIM; DTEIaC 4. THE LOWER COURT ERRED IN NOT FINDING THAT THE DECEASED WAS KILLED IN SELF-DEFENSE AND/OR DEFENSE OF RELATIVE;

5. THE TRIAL COURT ERRED IN AWARDING DAMAGES TO THE HEIRS OF THE DECEASED. 16 We begin our evaluation with accused-appellant Ramon Regalario's claim of selfdefense. Both the CA and the trial court gave no credence to this theory of selfdefense. 2009jur When self-defense is invoked by an accused charged with murder or homicide he necessarily owns up to the killing but may escape criminal liability by proving that it was justified and that he incurred no criminal liability therefor. Hence, the three (3) elements of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to prevent or repel the aggression; and (c) lack of sufficient provocation on the part of the person defending himself, must be proved by clear and convincing evidence. However, without unlawful aggression, there can be no self-defense, either complete or incomplete. 17 CSDTac Accused-appellant Ramon contends that the victim Rolando Sevilla committed an act of unlawful aggression with no provocation on his [Ramon's] part. Ramon testified that he was trying to investigate a commotion when, without warning, Rolando emerged from the group, thrust and fired his gun at him, hitting him in the left shoulder. To disable Rolando from firing more shots, Ramon struck the victim's head at the back with his nightstick, causing the victim to reel backward and lean on the bamboo fence. He continued hitting Rolando to prevent the latter from regaining his balance and, as he pressed on farther, the victim retreated backward. By Ramon's own account, after he was shot, he hit the victim at the back of the latter's head and he continued hitting the victim who retreated backward. From that moment, the inceptive unlawful aggression on the part of the victim ceased to exist and the continuation of the offensive stance of Ramon put him in the place of an aggressor. There was clearly no longer any danger, but still Ramon went beyond the call of self-preservation. In People v. Cajurao, 18 we held: aTcSID . . . The settled rule in jurisprudence is that when unlawful aggression ceases, the defender no longer has the right to kill or even wound the former aggressor. Retaliation is not a justifying circumstance. Upon the cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person invoking self-defense to attack his adversary ceases. If he persists in attacking his adversary, he can no longer invoke the justifying circumstance of self-defense. Selfdefense does not justify the unnecessary killing of an aggressor who is retreating from the fray. (Emphasis supplied) Ramon's claim of self-defense is further belied by the presence of two (2) stab wounds on the neck, four (4) lacerated wounds on the head, as well as multiple abrasions and contusions on different parts of the victim's body, as shown in the Medico-Legal Report. Dr. Mario Cerillo who conducted the post-mortem examination on the victim revealed that the victim's lacerated wounds could have been caused by

a blunt instrument like a hard stick, a stone or an iron bar; his stab wounds by a sharp-edged instrument or knife; his contusions and hematoma by a fist blow or through contact with a blunt instrument. He also declared that the sharp object which caused the victim's stab wounds could have been a knife 2 centimeters (cms.) wide and 6 cms. long because they were clean-cut wounds. Indeed, even if it were true that the victim fired a gun at Ramon, the number, nature and severity of the injuries suffered by the victim indicated that the force used against him by Ramon and his coaccused was not only to disarm the victim or prevent him from doing harm to others. HDAECI The four (4) other accused-appellants, namely, Sotero, Marciano, Bienvenido and Noel, to exonerate themselves, denied their involvement in inflicting wounds on Rolando. Sotero claimed that he arrived at the scene of the crime at the time when Rolando lost his footing on the edge of the pavement and fell down. He even shouted at Ramon to stop beating Rolando. However, when Ramon told him that Rolando still had the gun, he jumped on Rolando and they wrestled on the ground for the possession of the gun. Marciano maintained that he, together with Jose Poblete, arrived at the crime scene when Ramon had already knocked the gun out of Rolando's hand and the gun fell near the place where Jose Poblete was standing. When he went to that place, he already knew that his brother (Ramon) had been shot, so, he told the latter to go to the hospital. Thereafter, he and Sotero proceeded to the police station to report the shooting incident. CTSDAI Bienvenido asserted that he arrived at the crime scene after the shooting incident. He was asked by Marciano to arrest Rolando. Lastly, Noel insisted that he was not present when the shooting incident took place. He was inside their house sleeping, as his wife had just given birth. We are not convinced. Accused-appellants' denials cannot overcome the positive identification by the prosecution's witnesses. Elementary is the rule that positive identification, where categorical and consistent, prevails over unsubstantiated denials because the latter are negative and self-serving, and thus, cannot be given any weight on the scales of justice. 19 The participation of each of the accused-appellants can be fully ascertained from the clear, categorical and spontaneous testimony given by prosecution witness, Ronnie Siglos, who was at the scene of the crime, thus: CHDTEA PROSECUTOR RESARI:

Q While you were walking on your way home, was there an unusual incident and can you recall? A Q Yes, ma'am What was that incident about?

A While I was on my way towards the house of my parents, I just suddenly saw a person being beaten on the road. Q When you first noticed that there was a man being beaten along the road, how far were you? A xxx Q I was about more or less 9 to 10 meters. xxx xxx CDTHSI

When you saw a man being beaten what did you do?

A I continue walking, but upon reaching that place near the person being beaten, I stopped. Q A xxx Q A Q Why did you stop? To verify and know as to who that person being beaten. xxx xxx

And who was that person being beaten? Rolando Sevilla. Who were the persons beating Rolando Sevilla? DHATcE

A Marciano Regalario, Sotero Regalario, Ramon Regalario, Bienvenido Regalario, Noel Regalario, Ernani Regalario, Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio Rebanal. Q A Who else? Cecilio Lunas.

Q If some of the persons you saw beating Rolando Sevilla are present in this court room, will you be able to point and identify them? A xxx PROSECUTOR: Yes, ma'am. xxx xxx

Q You stated that you saw the persons you have just named as beating Rolando Sevilla. Were there weapons used in beating Rolando Sevilla? A Q Yes. What kind of weapons (was) used?

A Sotero was armed with bahi wood, and also Ramon. Bienvenido was also armed with bahi, as well as Cecilio Lunas, Jose Quinno were also armed with 'malopalo'. SICDAa xxx Q A xxx xxx xxx

What kind of weapon was being held by Noel Regalario? A knife. xxx xxx

Q Now, when you saw Rolando Sevilla being beaten by the persons you mentioned before, what did you notice on the condition of Rolando Sevilla? A Q A Q A Q xxx WITNESS: He was already motionless. He is not moving anymore. PROSECUTOR: Of the persons you named as holding weapons, you did not mention Marciano Regalario as holding any weapon. What was Marciano Regalario doing then? A Q He boxed Rolando Sevilla and Rolando was hit on his jaw. What else did Marciano Regalario do if any? He was lying on his stomach. Did you see the face of Rolando Sevilla? Yes. How were you able to see the face of Rolando Sevilla? Because Sotero was holding him by his hair. 2009jur What was your observation on the condition of Rolando Sevilla? xxx xxx aAcDSC

A After he boxed Rolando Sevilla, he went inside his house but after about one (1) minute he again return(ed) back. AEaSTC

Q A Q A

After Marciano Regalario returned back, what did he do if any? He shouted to kill that. After you heard Marciano Regalario (say) to kill "that", what did you do? I proceeded towards home.

Q While you were walking, was there any unusual incident which again happened? A Q Yes. And, what was that incident?

A While I was walking towards home, again I heard Marciano Regalario shouted to tie him, that is why I again stopped. CHaDIT Q A When you heard Marciano Regalario to tie him how far were you from him? More or less 7 meters.

Q You said that upon hearing Marciano Regalario, you stopped. What else happened? A Bienvenido Regalario passed by me and went to that sleigh (pababa) which is on the lower portion and got a rope. Q A What did Bienvenido Regalario do with the rope? He tied Rolando Sevilla by placing the rope around his neck and tied his hands.

Q Was there somebody who assisted Bienvenido Regalario in tying Rolando Sevilla? A Q A Yes. Who were the persons, if any? Sotero Regalario.

Q Aside from Sotero, was there anybody else who helped Bienvenido Regalario in tying Rolando Sevilla? aCSTDc A No more.

Q While Rolando Sevilla was being hog tied, where were the persons of Marciano Regalario, Noel Regalario, Ramon Regalario and the rest of the persons whom you just mentioned awhile ago?

They were there standing beside Rolando Sevilla and they were watching.

Q Did you notice whether Rolando Sevilla was still moving when he was still being tied up by Bienvenido and Sotero? A He was not moving anymore. 20 aSIETH

The aforequoted testimony of Ronnie Siglos is corroborated by the following testimony of Armando Poblete: Q While you were standing by the road, what did you notice?

A Then I saw Rolando Sevilla being chased by Bienvenido and Sotero both surnamed Regalario. Q To what direction was Rolando Sevilla being chased by Sotero and Bienvenido Regalario? A xxx Towards the place of Kapitan. xxx xxx

PROSECUTOR RESARI: Q Considering that was already nighttime, how were you able to know that the person being chased was Rolando Sevilla and the persons chasing him were the two (2) Regalarios which you have identified? DHacTC A Q A xxx Q Because, I was with Sevilla during that time and it was moonlit night. When the two (2) were chasing Rolando Sevilla, what happened next? Ramon waylaid Rolando Sevilla. xxx xxx

After you saw Ramon Regalario waylaid Rolando Sevilla, what else did you see?

A After that I saw the group of Sotero, Regalario, Marciano, Noel, caught up with Rolando. xxx xxx xxx

PROSECUTOR RESARI: Q Since Bienvenido Regalario and Sotero Regalario were the ones chasing Rolando Sevilla, from what direction did Ramon Regalario come from when he waylaid Rolando Sevilla? HaSEcA A That side, left side going towards the house of Kapitan.

Q A

And where did Marciano and Noel . . . come from? From their house.

Q After the five (5) caught up with Rolando Sevilla, what happened to Rolando Sevilla? A Q A They took turns in beating him. Did they use any weapon in beating Rolando Sevilla? Yes, their night sticks.

Q When Bienvenido and Sotero caught up with Rolando Sevilla; and the three (3) other accused also joined the two (2), how far was your distance to them? DHcTaE A More or less 14 to 15 meters. 21

We agree with the findings of the two courts below as to the presence of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots. The agreement to commit a crime, however, may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to a joint purpose and design, concerted action, and community of intent. It does not matter who inflicted the mortal wound, as the act of one is the act of all, and each incurs the same criminal liability. 22 We quote with approval the findings and observations of the CA, thus: The eyewitnesses' account surrounding Rolando Sevilla's death shows that the accused-appellants performed concerted acts in pursuit of a common objective. Sotero, Bienvenido, and Ramon, armed with nightsticks, and Noel armed with a knife, seven inches in length, beat Rolando Sevilla. All five accused-appellants caught up with the victim, blocked all means through which the victim could escape and ensured the achievement of their plan to kill Rolando Sevilla even as the latter already fell to the ground. Accused-appellant Marciano hit the victim on his jaw and later, ordered his co-accused to kill and tie the victim. Upon hearing Marciano's instruction, Bienvenido Regalario tied Rolando's neck, hands and feet with a rope. The collective act of the accused-appellants is sufficient to make them co-principals to the killing. 23 ECaTDc Considering the foregoing, as well as the manner in which the attack against Rolando was carried out, and the testimonies of the prosecution witnesses positively identifying the accused-appellants as the assailants, we concur in the rulings of the CA, affirming those of the trial court, in (a) disregarding Ramon Regalario's declaration that he attacked the victim in self-defense and (b) holding that all the accused-appellants acted in concert and killed Rolando.

We likewise rule that both the CA and the trial court were correct in appreciating the qualifying circumstance of abuse of superior strength in killing Rolando Sevilla. To take advantage of superior strength is to use force out of proportion to the means available to the person attacked to defend himself. In order to be appreciated, it must be clearly shown that there was deliberate intent on the part of the malefactors to take advantage thereof. 24 In this case, as testified to by the prosecution eyewitnesses, accused-appellants Ramon, Sotero and Bienvenido, with the exception of Marciano, were armed with nightsticks (bahi) while Noel was holding a knife. Clearly they took advantage of their superiority in number and arms in killing the victim, as shown by numerous wounds the latter suffered in different parts of his body. CacTSI Also affirmed is the ruling of both courts appreciating the presence of the generic aggravating circumstance of scoffing at the body of the victim. Accused-appellants did not just kill the victim. They tied him hog-style after rendering him immobilized. This action constituted outraging or scoffing at the corpse of the victim. In this connection, we agree with the trial court's observation: . . . The concerted acts committed by all the accused mostly armed with wooden clubs and one with a 7-inch long knife after the victim fell pummeling him with mortal blows on the forehead and back of his head and stab wounds on his neck and one of them telling his co-accused to kill the victim clearly proved that the Regalarios conspired and took advantage of their strength and number. Not satisfied with delivering mortal blows even when their hapless victim was already immobile, Bienvenido and Sotero, upon order of their co-accused Marciano, tied their victim hog style. The manner by which Rolando was tied as vividly captured in the picture (Exhs. 'C' & 'D') clearly speaks for itself that it was nothing but to scoff at their victim. 25 HTCIcE The CA was likewise correct in not appreciating the mitigating circumstance of voluntary surrender in favor of accused-appellants. For said circumstance to be appreciated, it must be spontaneous, in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expense of finding and capturing him. 26 In the case at bar, accused-appellants remained at large even after Judge Jose S. Saez issued the warrant for their arrest on February 6, 1998. Accused-appellants surrendered only on September 9, 1998 after several alias warrants of arrest were issued against them. Hence, voluntary surrender cannot be appreciated in their favor as mitigating circumstance. 2009jur The accused-appellants' acts plainly amount to murder, qualified by abuse of superior strength. As the generic aggravating circumstance of scoffing at the body of the victim was alleged and proven, and as there was no mitigating circumstance, the CA correctly sentenced accused-appellants to death in accordance with Art. 248, as

amended by Republic Act No. 7659, in relation to Art. 63 (1) of the Revised Penal Code. In view, however, of the passage of Republic Act No. 9346, 27 the imposition of the death penalty has been prohibited. Thus, the penalty imposed upon accusedappellants should be reduced to reclusion perpetua, without eligibility for parole. TCADEc While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. 28 Consequently, the civil indemnity for the victim is still P75,000.00. In People v. Quiachon, 29 we explained that even if the penalty of death is not to be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor (292 SCRA 186), the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As to the award of moral and exemplary damages, the CA correctly held accusedappellants jointly and severally liable to pay the heirs of Rolando Sevilla for the same. Moral damages are awarded despite the absence of proof of mental and emotional suffering of the victim's heirs. As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victim's family. 30 If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct. 31 However, consistent with recent jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00 32 while the award of exemplary damages should be increased from P25,000.00 to P30,000.00. 33 ITSCED WHEREFORE, the decision of the Court of Appeals dated May 31, 2006 in CA-G.R. CR No. 01556 is hereby AFFIRMED with the following modifications: (1) the penalty of death imposed on accused-appellants is lowered to reclusion perpetua without eligibility for parole; (2) the monetary awards to be paid jointly and severally by accused-appellants are as follows: P75,000.00 as civil indemnity, P75,000.00 as moral damages and P30,000.00 as exemplary damages; and (3) interest on all the damages awarded at the legal rate of 6% from this date until fully paid is imposed. 34 SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio Morales, Tinga, Velasco, Jr. and Peralta, JJ., concur.

Chico-Nazario and Brion, JJ., are on leave. Nachura, J., took no part. Signed pleading as Solicitor General. 2009jur Footnotes 1. Penned by Associate Justice Vicente S.E. Veloso with Associate Justice Portia Alio-Hormachuelos and Associate Justice Amelita G. Tolentino, concurring; rollo, pp. 3-29. IaAScD 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Penned by Judge Jose S. Saez; CA record, pp. 51-84. RTC record, p. 55. Id. at 115-116. CA rollo at 51-84. Id. at 97. Id. at 113-127. Id. at 189-227. G.R. Nos. 147678-87, July 4, 2004, 433 SCRA 640. CA rollo, pp. 197-204. Id. at 119-121. Rollo, p. 25. Id. at 38. Id. at 42. Id. at 50-61. CIScaA

CA rollo, pp. 121-122.

17. People v. More, et al., G.R. No. 128820, December 23, 1999, 321 SCRA 538, 543-544. 18. 19. 20. 21. G.R. No. 122767, January 20, 2004, 420 SCRA 207, 214-215. People v. Carullo, G.R. Nos. 129289-90, July 29, 1999, 311 SCRA 680, 691-692. TSN, December 7, 1998, pp. 32-38. TSN, December 7, 1998, pp. 6-9.

22. 23. 24. 689. 25. 26. 27.

People v. Cawaling, G.R. No. 117970, July 28, 1998, 293 SCRA 267, 306-307. Rollo, pp. 14-15. People v. Tumanon, et al., G.R. No. 135066, February 15, 2001, 351 SCRA 676, AISHcD CA rollo, p. 83. People v. Maalat, G.R. No. 109814, July 8, 1997, 275 SCRA 206, 213-214. An Act Prohibiting the Imposition of Death Penalty in the Philippines.

28. People v. Salome, G.R. No. 169077, August 31, 2006, 500 SCRA 659, 676. See also People v. Ranin, G.R. 173023, June 25, 2008 and People v. Entrialgo, G.R. 177353, November 11, 2008. 29. 30. 31. G.R. No. 170235, August 31, 2006, 500 SCRA 704, 719. Ibid. People v. Aguila, G.R. No. 171017, December 6, 2006, 510 SCRA 642, 663.

32. People v. Audine, G.R. No. 168649, December 6, 2006, 510 SCRA 531, 547, People v. Orbita, G.R. No. 172091, March 31, 2008; People v. Balobalo, G.R. No. 177563, October 18, 2008. 33. 34. People v. Sia, G.R. 174059, February 27, 2009. People v. Guevarra, G.R. No. 182191, October 29, 2008. CIaHDc

OLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of Dinagat Islands, respondents, CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D. GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, intervenors. RESOLUTION NACHURA, J p:

For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20, 2010 filed by Movant-Intervenors 1 dated and filed on October 29, 2010, praying that the Court (a) recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010 Resolution. CSHDTE To provide a clear perspective of the instant motion, we present hereunder a brief background of the relevant antecedents On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355 (An Act Creating the Province of Dinagat Islands). 2 On December 3, 2006, the Commission on Elections (COMELEC) conducted the mandatory plebiscite for the ratification of the creation of the province under the Local Government Code (LGC). 3 The plebiscite yielded 69,943 affirmative votes and 63,502 negative votes. 4 With the approval of the people from both the mother province of Surigao del Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007. 5 On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina, former political leaders of Surigao del Norte, filed before this Court a petition for certiorari and prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355. 6 The Court dismissed the petition on technical grounds. Their motion for reconsideration was also denied. 7 Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed another petition for certiorari 8 seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. They pointed out that when the law was passed, Dinagat had a land area of 802.12 square kilometers only and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and of Section 461 of the LGC, on both counts, viz. Constitution, Article X Local Government Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected. cSHATC LGC, Title IV, Chapter I

Section 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a continuous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis supplied.) On February 10, 2010, the Court rendered its Decision 9 granting the petition. 10 The Decision declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population and land area in the creation of a province under the LGC. Consequently, it declared the proclamation of Dinagat and the election of its officials as null and void. The Decision likewise declared as null and void the provision on Article 9 (2) of the Rules and Regulations Implementing the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the LGC, inasmuch as such exemption is not expressly provided in the law. 11 The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for reconsideration of the Decision. In its Resolution 12 dated May 12, 2010, 13 the Court denied the said motions. 14 DCSTAH Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit their second motions for reconsideration, accompanied by their second motions for reconsideration. These motions were eventually "noted without action" by this Court in its June 29, 2010 Resolution. 15 Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010. They alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which provides

RESOLUTION NO. 8790 WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on 02 December 2006 in the Plebiscite for this purpose; WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670 dated 16 September 2009; WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al. vs. Executive Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution; WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the Supreme Court; WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, (8) all the names of the candidates for Sangguniang Panlalawigan Members, have already been configured into the system and can no longer be revised within the remaining period before the elections on May 10, 2010. IcAaEH NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that: a. If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate provinces; b. If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte.

But because of the current system configuration, the ballots for the Province of Dinagat Islands will, for the positions of Member, House of Representatives, Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates for the said positions. Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the position of Governor, Vice Governor, Member, House of Representatives, First District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the said position. Likewise, the whole Province of Surigao del Norte, will, for the position of Governor and Vice Governor, bear only the names of the candidates for the said position[s]. Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of] Representatives, First Legislative District, Surigao del Norte, and candidates for Governor and Vice Governor for Surigao del Norte. Meanwhile, voters of the First Legislative District of Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and Member, House of Representatives, Dinagat Islands. Also, the voters of the whole Province of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat Islands. Given this situation, the Commission will postpone the elections for Governor, Vice Governor, Member, House of Representatives, First Legislative District, Surigao del Norte, and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte, because the election will result in [a] failure to elect, since, in actuality, there are no candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First Legislative District, and Member, House of Representatives, First Legislative District (with Dinagat Islands) of Surigao del Norte. ESCTIA c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. xxx SO ORDERED. They further alleged that, because they are the duly elected officials of Surigao del Norte whose positions will be affected by the nullification of the election results in the event that the May 12, 2010 Resolution is not reversed, they have a legal interest in the instant case and would be directly affected by the declaration of nullity of R.A. No. 9355. Simply put, movants-intervenors' election to their respective offices would necessarily be annulled since Dinagat Islands will revert to its previous status as part xxx xxx

of the First Legislative District of Surigao del Norte and a special election will have to be conducted for governor, vice governor, and House of Representatives member and Sangguniang Panlalawigan member for the First Legislative District of Surigao del Norte. Moreover, as residents of Surigao del Norte and as public servants representing the interests of their constituents, they have a clear and strong interest in the outcome of this case inasmuch as the reversion of Dinagat as part of the First Legislative District of Surigao del Norte will affect the latter province such that: (1) the whole administrative set-up of the province will have to be restructured; (2) the services of many employees will have to be terminated; (3) contracts will have to be invalidated; and (4) projects and other developments will have to be discontinued. In addition, they claim that their rights cannot be adequately pursued and protected in any other proceeding since their rights would be foreclosed if the May 12, 2010 Resolution would attain finality. In their motion for reconsideration of the May 12, 2010 Resolution, movantsintervenors raised three (3) main arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of the LGC; (2) that the exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case. ScCIaA In the Resolution dated July 20, 2010, 16 the Court denied the Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 on the ground that the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the Court, and that the appropriate time to file the said motion was before and not after the resolution of this case. On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010 Resolution, citing several rulings 17 of the Court, allowing intervention as an exception to Section 2, Rule 19 of the Rules of Court that it should be filed at any time before the rendition of judgment. They alleged that, prior to the May 10, 2010 elections, their legal interest in this case was not yet existent. They averred that prior to the May 10, 2010 elections, they were unaware of the proceedings in this case. Even for the sake of argument that they had notice of the pendency of the case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the Second District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro, Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and Sangguniang Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became possessed with legal interest in this controversy.

On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case had become final and executory on May 18, 2010. Hence, the above motion. At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall Entry of Judgment of movants-intervenors, not on the second motions for reconsideration of the original parties, and neither on Dinagat's Urgent Omnibus Motion, which our esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat's third motion for reconsideration. Inasmuch as the motions for leave to admit their respective motions for reconsideration of the May 12, 2010 Resolution and the aforesaid motions for reconsideration were already noted without action by the Court, there is no reason to treat Dinagat's Urgent Omnibus Motion differently. In relation to this, the Urgent Motion to Recall Entry of Judgment of movants-intervenors could not be considered as a second motion for reconsideration to warrant the application of Section 3, Rule 15 of the Internal Rules of the Supreme Court. 18 It should be noted that this motion prays for the recall of the entry of judgment and for the resolution of their motion for reconsideration of the July 20, 2010 Resolution which remained unresolved. The denial of their motion for leave to intervene and to admit motion for reconsideration of the May 12, 2010 Resolution did not rule on the merits of the motion for reconsideration of the May 12, 2010 Resolution, but only on the timeliness of the intended intervention. Their motion for reconsideration of this denial elaborated on movants-intervenors' interest in this case which existed only after judgment had been rendered. As such, their motion for intervention and their motion for reconsideration of the May 12, 2010 Resolution merely stand as an initial reconsideration of the said resolution. jurcda With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim that this was a ploy of respondents' legal tactician to reopen the case despite an entry of judgment. To be sure, it is actually COMELEC Resolution No. 8790 that set this controversy into motion anew. To reiterate, the pertinent portion of the Resolution reads: c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. (Emphasis supplied.) Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest for movants-intervenors only with the specter of the decision in the main case becoming final and executory. More importantly, if the intervention be not entertained, the movants-intervenors would be left with no other remedy as regards to the impending nullification of their election to their respective positions. Thus, to

the Court's mind, there is an imperative to grant the Urgent Motion to Recall Entry of Judgment by movants-intervenors. It should be remembered that this case was initiated upon the filing of the petition for certiorari way back on October 30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of this case. While it may be argued that their interest in this case should have commenced upon the issuance of COMELEC Resolution No. 8790, it is obvious that their interest in this case then was more imaginary than real. This is because COMELEC Resolution No. 8790 provides that should the decision in this case attain finality prior to the May 10, 2010 elections, the election of the local government officials stated therein would only have to be postponed. Given such a scenario, movants-intervenors would not have suffered any injury or adverse effect with respect to the reversion of Dinagat as part of Surigao del Norte since they would simply have remained candidates for the respective positions they have vied for and to which they have been elected. DEcTIS For a party to have locus standi, one must allege "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." Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised. 19 It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion to Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 is denied with finality. Indeed, they have sufficiently shown that they have a personal and substantial interest in the case, such that if the May 12, 2010 Resolution be not reconsidered, their election to their respective positions during the May 10, 2010 polls and its concomitant effects would all be nullified and be put to naught. Given their unique circumstances, movants-intervenors should not be left without any remedy before this Court simply because their interest in this case became manifest only after the case had already been decided. The consequences of such a decision would definitely work to their disadvantage, nay, to their utmost prejudice, without even them being parties to the dispute. Such decision would also violate their right to due process, a right that cries out for protection. Thus, it is imperative that the movants-intervenors be heard on the merits of their cause. We are not only a court of law, but also of justice and equity, such that our position and the dire repercussions of this controversy should be weighed on the scales of justice, rather than dismissed on account of mootness. The "moot and academic" principle is not a magical formula that can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is a grave violation of the Constitution; (2) there is an exceptional character of the situation and the paramount public interest is involved;

(3) the constitutional issue raised requires formation of controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet evading review. 20 The second exception attends this case. ASHEca This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo, 21 where technicalities of procedure on locus standi were brushed aside, because the constitutional issues raised were of paramount public interest or of transcendental importance deserving the attention of the Court. Along parallel lines, the motion for intervention should be given due course since movants-intervenors have shown their substantial legal interest in the outcome of this case, even much more than petitioners themselves, and because of the novelty, gravity, and weight of the issues involved. Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010 Resolution of movants-intervenors is akin to the right to appeal the judgment of a case, which, though merely a statutory right that must comply with the requirements of the rules, is an essential part of our judicial system, such that courts should proceed with caution not to deprive a party of the right to question the judgment and its effects, and ensure that every party-litigant, including those who would be directly affected, would have the amplest opportunity for the proper and just disposition of their cause, freed from the constraints of technicalities. 22 Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of attendant extraordinary circumstances. 23 The power to suspend or even disregard rules of procedure can be so pervasive and compelling as to alter even that which this Court itself had already declared final. 24 In this case, the compelling concern is not only to afford the movants-intervenors the right to be heard since they would be adversely affected by the judgment in this case despite not being original parties thereto, but also to arrive at the correct interpretation of the provisions of the LGC with respect to the creation of local government units. In this manner, the thrust of the Constitution with respect to local autonomy and of the LGC with respect to decentralization and the attainment of national goals, as hereafter elucidated, will effectively be realized. On the merits of the motion for intervention, after taking a long and intent look, the Court finds that the first and second arguments raised by movants-intervenors deserve affirmative consideration. HIACac It must be borne in mind that the central policy considerations in the creation of local government units are economic viability, efficient administration, and capability to deliver basic services to their constituents. The criteria prescribed by the LGC, i.e., income, population and land area, are all designed to accomplish these results. In this light, Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing emphasis on which of them should enjoy preferential consideration.

Without doubt, the primordial criterion in the creation of local government units, particularly of a province, is economic viability. This is the clear intent of the framers of the LGC. In this connection, the following excerpts from congressional debates are quoted hereunder HON. ALFELOR. Income is mandatory. We can even have this doubled because we thought . . . CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic viability of the new local government unit, the new province? xxx HON. LAGUDA. The reason why we are willing to increase the income, double than the House version, because we also believe that economic viability is really a minimum. Land area and population are functions really of the viability of the area, because you have an income level which would be the trigger point for economic development, population will naturally increase because there will be an immigration. However, if you disallow the particular area from being converted into a province because of the population problems in the beginning, it will never be able to reach the point where it could become a province simply because it will never have the economic take off for it to trigger off that economic development. ADSTCI Now, we're saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and provide a minimum of basic services to the population. Over and above that, the provincial officials should be able to trigger off economic development which will attract immigration, which will attract new investments from the private sector. This is now the concern of the local officials. But if we are going to tie the hands of the proponents, simply by telling them, "Sorry, you are now at 150 thousand or 200 thousand," you will never be able to become a province because nobody wants to go to your place. Why? Because you never have any reason for economic viability. xxx xxx xxx xxx xxx

CHAIRMAN PIMENTEL. Okay, what about land area? HON. LUMAUIG. 1,500 square kilometers

HON. ANGARA. Walang problema 'yon, in fact that's not very critical, 'yong land area because . .. CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square kilometers. HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of basic services. CHAIRMAN PIMENTEL. Right. HON. LAGUDA. Actually, when you come down to it, when government was instituted, there is only one central government and then everybody falls under that. But it was later on subdivided into provinces for purposes of administrative efficiency. CHAIRMAN PIMENTEL. Okay. HON. LAGUDA. Now, what we're seeing now is that the administrative efficiency is no longer there precisely because the land areas that we are giving to our governors is so wide that no one man can possibly administer all of the complex machineries that are needed. Secondly, when you say "delivery of basic services," as pointed out by Cong. Alfelor, there are sections of the province which have never been visited by public officials, precisely because they don't have the time nor the energy anymore to do that because it's so wide. Now, by compressing the land area and by reducing the population requirement, we are, in effect, trying to follow the basic policy of why we are creating provinces, which is to deliver basic services and to make it more efficient in administration. CHAIRMAN PIMENTEL. Yeah, that's correct, but on the assumption that the province is able to do it without being a burden to the national government. That's the assumption. IHCacT

HON. LAGUDA. That's why we're going into the minimum income level. As we said, if we go on a minimum income level, then we say, "this is the trigger point at which this administration can take place." 25 aDHCEA Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a province as provided both in the LGC and the LGC-IRR, viz. For a Barangay: LGC: SEC. 386. Requisites for Creation. (a) A barangay may be created out of a contiguous territory which has a population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein. To enhance the delivery of basic services in the indigenous cultural communities, barangays may be created in such communities by an Act of Congress, notwithstanding the above requirement. (b) The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands. (c) The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate action. In the case of municipalities within the Metropolitan Manila area and other metropolitan political subdivisions, the barangay consolidation plan can be prepared and approved by the sangguniang bayan concerned. LGC-IRR: ARTICLE 14. Barangays. (a) Creation of barangays by the sangguniang panlalawigan shall require prior recommendation of the sangguniang bayan. (b) New barangays in the municipalities within MMA shall be created only by Act of Congress, subject to the limitations and requirements prescribed in this Article. (c) Notwithstanding the population requirement, a barangay may be created in the indigenous cultural communities by Act of Congress upon recommendation of the LGU or LGUs where the cultural community is located. SEHTAC (d) A barangay shall not be created unless the following requisites are present:

(1) Population which shall not be less than two thousand (2,000) inhabitants, except in municipalities and cities within MMA and other metropolitan political subdivisions as may be created by law, or in highly-urbanized cities where such territory shall have a population of at least five thousand (5,000) inhabitants, as certified by the NSO. The creation of a barangay shall not reduce the population of the original barangay or barangays to less than the prescribed minimum. (2) Land Area which must be contiguous, unless comprised by two (2) or more islands. The territorial jurisdiction of a barangay sought to be created shall be properly identified by metes and bounds or by more or less permanent natural boundaries. Municipality: LGC: SEC. 442. Requisites for Creation. (a) A municipality may be created if it has an average annual income, as certified by the provincial treasurer, or at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand (25,000) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands Management Bureau: Provided, That the creation thereof shall not reduce the land area, population or income of the original municipality or municipalities at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund of the municipality concerned, exclusive of special funds, transfers and nonrecurring income. (d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered regular municipalities. caSEAH LGC-IRR: ARTICLE 13. Municipalities. (a) Requisites for Creation A municipality shall not be created unless the following requisites are present: (i) Income An average annual income of not less than Two Million Five Hundred Thousand Pesos (P2,500,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by the provincial treasurer. The

average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; (ii) Population which shall not be less than twenty five thousand (25,000) inhabitants, as certified by NSO; and (iii) Land area which must be contiguous with an area of at least fifty (50) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands. The requirement on land area shall not apply where the proposed municipality is composed of one (1) or more islands. The territorial jurisdiction of a municipality sought to be created shall be properly identified by metes and bounds. The creation of a new municipality shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners. City: LGC: SEC. 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or, (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. ADCSEa (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. LGC-IRR: ARTICLE 11. Cities. (a) Requisites for creation A city shall not be created unless the following requisites on income and either population or land area are present:

(1) Income An average annual income of not less than Twenty Million Pesos (P20,000,000.00), for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and (2) Population or land area Population which shall not be less than one hundred fifty thousand (150,000) inhabitants, as certified by the NSO; or land area which must be contiguous with an area of at least one hundred (100) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed city is composed of one (1) or more islands. The territorial jurisdiction of a city sought to be created shall be properly identified by metes and bounds. The creation of a new city shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners. Provinces: LGC: SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 prices and either of the following requisites: SHDAEC (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or, (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. LGC-IRR: ARTICLE 9. Provinces. (a) Requisites for creation A province shall not be created unless the following requisites on income and either population or land area are present:

(1) Income An average annual income of not less than Twenty Million pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and (2) Population or land area Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds. The creation of a new province shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental to the creation shall be borne by the petitioners. (Emphasis supplied.) ESIcaC It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays, land area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for. But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9 (2) of the LGC-IRR. There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9 (2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9 (2) of the LGCIRR.

This interpretation finds merit when we consider the basic policy considerations underpinning the principle of local autonomy. Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as selfreliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units. SETAcC This declaration of policy is echoed in Article 3 (a) of the LGC-IRR 26 and in the Whereas clauses of Administrative Order No. 270, 27 which read WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of local governments; WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals; WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an Oversight Committee for the purpose of formulating and issuing the appropriate rules and regulations necessary for the efficient and effective implementation of all the provisions of the said Code; and WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations; . . . Consistent with the declared policy to provide local government units genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective local government units should be liberally construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an intended province that consists of several municipalities and component cities which, in themselves, also consist of islands. The component cities and municipalities which consist of islands are exempt from the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the

province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several islands. This would mean that Congress has opted to assign a distinctive preference to create a province with contiguous land area over one composed of islands and negate the greater imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer territory of a province is scattered because the islands are separated by bodies of water, as compared to one with a contiguous land mass. acCTSE Moreover, such a very restrictive construction could trench on the equal protection clause, as it actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the land area requirement should be read together with territorial contiguity. Another look at the transcript of the deliberations of Congress should prove enlightening: CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian, 28 with respect to his . . . CHAIRMAN LINA. Okay. HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished Senator about the action taken by the House, on House Bill No. 7166. This was passed about two years ago and has been pending in the Senate for consideration. This is a bill that I am not the only one involved, including our distinguished Chairman here. But then we did want to sponsor the bill, being the Chairman then of the Local Government. So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the creation of the new provinces, because of the vastness of the areas that were involved. At any rate, this bill was passed by the House unanimously without any objection. And as I have said a while ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel himself was just in South Cotabato and he delivered a speech that he will support this bill, and he says, that he will incorporate this in the Local Government Code, which I have in writing from him. I showed you the letter that he wrote, and naturally, we in the House got hold of the Senate version. It becomes an impossibility for the whole Philippines to create a new province, and that is quite the concern of the respective Congressmen. IaECcH

Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother province from voting against the bill, if a province is going to be created. So, we are talking about devolution of powers here. Why is the province not willing to create another province, when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won't have one million people there, and if you look at Palawan, there will be about three or four provinces that will comprise that island. So, the development will be hampered. Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This was practically about a year after 7166 was approved by the House, House Bill 7166. On November 2, 1989, the Senator wrote me: "Dear Congressman Chiongbian: We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for second reading. Thank you and warm regards. Very truly yours," That is the very context of the letter of the Senator, and we are quite surprised that the Senate has adopted another position. So, we would like because this is a unanimously approved bill in the House, that's the only bill that is involving the present Local Government Code that we are practically considering; and this will be a slap on the House, if we do not approve it, as approved by the lower House. This can be [an] irritant in the approval of the Conference Committee Report. And I just want to manifest that insofar as the creation of the province, not only in my province, but the other provinces. That the mother province will participate in the plebiscite, they can defeat the province, let's say, on the basis of the result, the province cannot be created if they lose in the plebiscite, and I don't see why, we should put this stringent conditions to the private people of the devolution that they are seeking. ATESCc So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of the House that are interested in this bill. And they have been approaching the Speaker about this. So, the Speaker reminded me to make sure that it takes the cudgel of the House approved version.

So, that's all what I can say, Mr. Senator, and I don't believe that it is not, because it's the wish of the House, but because the mother province will participate anyhow, you vote them down; and that is provided for in the Constitution. As a matter of fact, I have seen the amendment with regards to the creation of the city to be urbanized, subject to the plebiscite. And why should we not allow that to happen in the provinces! In other words, we don't want the people who wants to create a new province, as if they are left in the devolution of powers, when they feel that they are far away from civilization. Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But the province of South Cotabato has a very unique geographical territorial conglomerations. One side is in the other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other municipalities are in the East and in the West. And if they have to travel from the last town in the eastern part of the province, it is about one hundred forty kilometers to the capital town. And from the West side, it is the same distance. And from the North side, it is about one hundred kilometers. So that is the problem there. And besides, they have enough resources and I feel that, not because I am interested in the province, I am after their welfare in the future. Who am I to dictate on those people? I have no interest but then I am looking at the future development of these areas. As a matter of fact, if I am in politics, it's incidental; I do not need to be there, but I can foresee what the creation of a new province will bring to these people. It will bring them prosperity; it will bring them more income, and it will encourage even foreign investors. Like the PAP now, they are concentrating in South Cotabato, especially in the City of General Santos and the neighboring municipalities, and they are quite interested and even the AID people are asking me, "What is holding the creation of a new province when practically you need it?" It's not 20 or 30 kilometers from the capital town; it's about 140 kilometers. And imagine those people have to travel that far and our road is not like Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities there that are just one municipality is bigger than the province of La Union. They have the income. Of course, they don't have the population because that's a part of the land of promise and people from Luzon are migrating everyday because they feel that there are more opportunities here. So, by creating the new provinces, not only in my case, in the other cases, it will enhance the development of the Philippines, not because I am interested in my province. Well, as far as I am concerned, you know, I am in the twilight years of my life to serve and I would like to serve my people well. No personal or political interest here. I hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the House has already approved because we don't want them to throw the Conference Committee Report after we have worked that the house Bill has been, you know, drawn over board and not even considered by the Senate. And on top of that, we are considering a bill that has not yet been passed. So I hope the Senator will take that into account.

Thank you for giving me this time to explain. CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative history of the Senate version on this matter of creation of provinces. I am sure there was an amendment. As I said, I'll look into it. Maybe the House version was incorporated in toto, but maybe during the discussion, their amendments were introduced and, therefore, Senator Pimentel could not hold on to the original version and as a result new criteria were introduced. cCTAIE But because of the manifestation that you just made, we will definitely, when we reach a book, Title IV, on the matter of provinces, we will look at it sympathetically from your end so that the objective that you want [to] achieve can be realized. So we will look at it with sympathy. We will review our position on the matter, how we arrived at the Senate version and we will adopt an open mind definitely when we come into it. CHAIRMAN ALFELOR. Kanino 'yan? CHAIRMAN LINA. Book III. CHAIRMAN ALFELOR. Title? CHAIRMAN LINA. Title IV. CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a certain area. Like our case, because I put myself on our province, our province is quite very big. It's composed of four (4) congressional districts and I feel it should be five now. But during the Batasan time, four of us talked and conversed proposing to divide the province into two. There are areas then, when since time immemorial, very few governors ever tread on those areas. That is, maybe you're acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there] before, even today. That area now is infested with NPA. That is the area of Congressman Andaya.

Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With a big or a large area of a province, a certain administrator or provincial governor definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that an area where there is physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain provisions in the law where maybe we can treat it with special considerations. cECTaD Now, we went over the graduate scale of the Philippine Local Government Data as far as provinces are concerned. It is very surprising that there are provinces here which only composed of six municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me, Batanes. CHAIRMAN LINA. Will you look at the case of how many municipalities are there in Batanes province? CHAIRMAN ALFELOR. Batanes is only six. CHAIRMAN LINA. Six town. Siquijor? CHAIRMAN ALFELOR. Siquijor. It is region? CHAIRMAN LINA. Seven. CHAIRMAN ALFELOR. Seven. Anim. CHAIRMAN LINA. Six also. CHAIRMAN ALFELOR. Six also. CHAIRMAN LINA. It seems with a minimum number of towns? EHaCID

CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon. CHAIRMAN LINA. Camiguin, Camiguin. CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that's one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in order for the community to have its own idea how they will stimulate growth in their respective areas. So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a generalization. CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of some geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or will substantial aid coming from the national government to a particular area, say, to a municipality, achieve the same purpose? CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan lang yun, provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area. aIcETS There's a province of Camarines Sur which have the same share with that of Camiguin and Siquijor, but Camiguin is composed only of five municipalities; in Siquijor, it's composed of six, but the share of Siquijor is the same share with that of the province of Camarines Sur, having a bigger area, very much bigger. That is the budget in process. CHAIRMAN LINA.

Well, as I said, we are going to consider this very seriously and even with sympathy because of the explanation given and we will study this very carefully. 29 The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest intention of Congress to promote development in the previously underdeveloped and uninhabited land areas by allowing them to directly share in the allocation of funds under the national budget. It should be remembered that, under Sections 284 and 285 of the LGC, the IRA is given back to local governments, and the sharing is based on land area, population, and local revenue. 30 Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative history of the law, 31 or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive and/or legislative construction. Pursuant to this principle, Article 9 (2) of the LGC-IRR should be deemed incorporated in the basic law, the LGC. It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of members of both the Executive and Legislative departments, pursuant to Section 533 32 of the LGC. As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution. It was also mandated by the Constitution that a local government code shall be enacted by Congress, to wit Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied.) DEAaIS These State policies are the very reason for the enactment of the LGC, with the view to attain decentralization and countryside development. Congress saw that the old LGC, Batas Pambansa Bilang 337, had to be replaced with a new law, now the LGC of 1991, which is more dynamic and cognizant of the needs of the Philippines as an archipelagic country. This accounts for the exemption from the land area requirement of local government units composed of one or more islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to the creation of municipalities and cities, but inadvertently omitted from Section 461 with respect to the creation of provinces. Hence, the void or missing detail was filled in by the Oversight Committee in the LGC-IRR.

With three (3) members each from both the Senate and the House of Representatives, particularly the chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the inclusion by the Oversight Committee of the exemption from the land area requirement with respect to the creation of provinces consisting of one (1) or more islands was intended by Congress, but unfortunately not expressly stated in Section 461 of the LGC, and this intent was echoed through an express provision in the LGC-IRR. To be sure, the Oversight Committee did not just arbitrarily and whimsically insert such an exemption in Article 9 (2) of the LGC-IRR. The Oversight Committee evidently conducted due deliberation and consultations with all the concerned sectors of society and considered the operative principles of local autonomy as provided in the LGC when the IRR was formulated. 33 Undoubtedly, this amounts not only to an executive construction, entitled to great weight and respect from this Court, 34 but to legislative construction as well, especially with the inclusion of representatives from the four leagues of local government units as members of the Oversight Committee. With the formulation of the LGC-IRR, which amounted to both executive and legislative construction of the LGC, the many details to implement the LGC had already been put in place, which Congress understood to be impractical and not too urgent to immediately translate into direct amendments to the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the exemption from the land area requirement, which, with respect to the creation of provinces, can only be found as an express provision in the LGC-IRR. In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood into that exemption in Article 9 (2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island Province of Dinagat. CaAcSE Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear legislative intent to incorporate into the LGC that exemption from the land area requirement, with respect to the creation of a province when it consists of one or more islands, as expressly provided only in the LGC-IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of R.A. No. 9355. What is more, the land area, while considered as an indicator of viability of a local government unit, is not conclusive in showing that Dinagat cannot become a province, taking into account its average annual income of P82,696,433.23 at the time of its creation, as certified by the Bureau of Local Government Finance, which is four times more than the minimum requirement of P20,000,000.00 for the creation of a province. The delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at the results of the plebiscite and the May 10,

2010 elections as mere fait accompli circumstances which cannot operate in favor of Dinagat's existence as a province, they must be seen from the perspective that Dinagat is ready and capable of becoming a province. This Court should not be instrumental in stunting such capacity. As we have held in League of Cities of the Philippines v. Commission on Elections 35 Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter, and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators. So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of statutes. This presumption finds its roots in the tri-partite system of government and the corollary separation of powers, which enjoins the three great departments of the government to accord a becoming courtesy for each other's acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to ensure that no constitutional prescription or concept is infringed. Consequently, before a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court. STIcEA WHEREFORE, the Court resolved to: 1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and filed on October 29, 2010; 2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated July 20, 2010; 3. GRANT the Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands)

is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID; and 4. The petition is DISMISSED.

No pronouncement as to costs. SO ORDERED. Corona, C.J., Velasco, Jr., Leonardo-de Castro, Bersamin, Abad and Perez, JJ., concur. Carpio, J., I join the dissenting opinions of Justice Diosdado Peralta and Justice Brion and reserve the right to write a separate dissenting opinion. Carpio Morales, J., as I join J. Brion's dissent, I maintain my original vote, hence, I dissent. Brion and Peralta, JJ., see dissenting opinion. Del Castillo, J., see concurring opinion subject also to Internal Rules of S.C. Villarama, Jr., J., see dissenting opinion of J. Peralta, I join it. Mendoza, J., concurring subject to internal rules. Sereno, J., I dissent and join J. Peralta in his opinion. I also join J. Brion in his dissent. Separate Opinions CARPIO, J., dissenting: I join Justice Diosdado M. Peralta and Justice Arturo D. Brion in their dissents. I file this separate dissenting opinion because the majority's ruling today, legitimizing the creation of a province in blatant violation of the Constitution and the Local Government Code, opens the floodgates to the proliferation of pygmy provinces and legislative districts, mangling sacred and fundamental principles governing our democratic way of life and exacerbating the scourge of local dynastic politics. cCDAHE First. The Dinagat Islands province simply does not meet the criteria for the creation of a province. To implement the Constitution and for reasons of political practicality and economic viability, Section 461 of the Local Government Code bars the creation of provinces unless two of three minimum requirements are met. Section 461 of the Code provides: SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, that the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis supplied) Section 461 requires a province to meet the minimum income requirement and either the minimum land area or minimum population requirement. In short, two of the three minimum requirements must be satisfied, with the minimum income requirement one of the two. The Dinagat Islands province, whose income at the time of its creation in 2006 was P82,696,433.22, satisfies only the minimum income requirement. The Dinagat Islands province does not meet either the minimum land area requirement or the minimum population requirement. Indisputably, Dinagat Islands cannot qualify as a province under Section 461 of the Local Government Code, the law that governs the creation of provinces. cEITCA Based on the 2000 census, Dinagat Islands' population stood only at 106,951, less than half of the statutory minimum of 250,000. In the census conducted seven years later in 2007, one year after its creation, its population grew by only 13,862, reaching 120,813, still less than half of the minimum population required. The province does not fare any better in land area, with its main island, one sub-island and around 47 islets covering only 802.12 square kilometers, less than half of the 2,000 square kilometers minimum land area required. The Local Government Code contains no exception to the income and population or land requirements in creating provinces. What the Code relaxed was the contiguity rule for provinces consisting of "two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province." The minimum land area of 2,000 square kilometers in the Code for the creation of a province was never changed, and no exception was ever created by law. Hence, the exception created in the implementing rule 1 of the Local Government Code, exempting provinces "composed of one (1) or more islands" from the minimum land area requirement, is void for being ultra vires, granting a statutory exception that the Local Government Code clearly withheld. The implementing rule, being a mere

administrative regulation to implement the Local Government Code, cannot amend the Code but must conform to the Code. Only Congress, and not any other body, is constitutionally empowered to create, through amendatory legislation, exceptions to the land area requirement in Section 461 of the Code. The majority argues that since the exception of island provinces from the minimum land requirement was inserted in the implementing rules by the congressional Oversight Committee, the Court should extend great weight to this "legislative construction" of the Code. This is gross error. First, in Macalintal v. Comelec, 2 we ruled that a congressional oversight committee has no power to approve or disapprove the implementing rules of laws because the implementation of laws is purely an executive function. The intrusion of the congressional Oversight Committee in the drafting of implementing rules is a violation of the separation of powers enshrined in the Constitution. This Court cannot allow such intrusion without violating the Constitution. Second, Congress has no power to construe the law. Only the courts are vested with the power to construe the law. Congress may provide in the law itself a definition of terms but it cannot define or construe the law through its Oversight Committee after it has enacted the law because such power belongs to the courts. ISCTcH It is not difficult to see why Congress allowed an exception to the land area requirement in the creation of municipalities 3 and cities 4 but withheld it for provinces. The province, as the largest political and corporate subdivision of local governance in this country, serves as the geographic base from which municipalities, cities and even another province will be carved, fostering local development. Today's majority ruling, allowing the creation of an island province irrespective of population and land area so long as it has P20 million annual income, wipes away the territorial and population tiering among provinces, cities and municipalities the Local Government Code has carefully structured, reducing provinces to the level of a rich municipality, 5 unable to host otherwise qualified new smaller local government units for sheer lack of space. Despite the majority's ingenious resort to "legislative construction" in the implementing rules to exempt Dinagat Islands from the minimum land area requirement, the majority cannot escape one glaring fact: Dinagat Islands province satisfies only the minimum income requirement under Section 461 of the Local Government Code. Even assuming that the minimum land area requirement does not apply to island provinces, an assumption that is devoid of any legal basis, Dinagat Islands still fail to meet the minimum population requirement. Under Section 461 of the Code, two of the three minimum requirements must be satisfied in the creation of a province, with the income requirement being one of the two minimum requirements. The majority's ruling today creates the Dinagat Islands province despite the indisputable fact that it satisfies only one of the two necessary requirements prescribed in Section 461. The majority's ruling clearly violates Section 461 of the Code, no question about it.

Second. It is mandatory that a province must have a population of at least 250,000. The 1987 Constitution mandates that "each province[,] shall have at least one representative." 6 In Sema v. Commission on Elections, 7 we categorically ruled that "the power to create a province or city inherently involves the power to create a legislative district." Thus, when Congress creates a province it necessarily creates at the same time a legislative district. The province must comply with the minimum population of 250,000 because the Constitution mandates that 250,000 shall be the minimum population for the creation of legislative districts. 8 aIETCA The Constitution provides for proportional representation in the House of Representatives when it declares that "legislative districts [shall be] apportioned among provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants . . . ." This means that for every given number of inhabitants, "provinces, cities and the Metropolitan Manila area" will be entitled to one representative. In consonance with this constitutional rule on proportional representation and in compliance with the Equal Protection Clause, the minimum population for the creation of legislative districts in provinces and cities must be the same. Since the Constitution expressly provides that the minimum population of legislative districts in cities shall be 250,000, 9 then it necessarily follows that the minimum population of legislative districts in provinces shall also be 250,000. Otherwise, there will be a blatant violation of two fundamental principles of our democratic system the constitutional requirement of proportional representation in the House of Representatives for "provinces, cities and the Metropolitan Manila area" and the "one person, one vote" rule rooted in the Equal Protection Clause. Moreover, to treat land area as an alternative to the minimum population requirement (based on the conjunctive "either" in Section 461) destroys the supremacy of the Constitution, making the statutory text prevail over the clear constitutional language mandating a minimum population through the requirement of proportional representation in the apportionment of all legislative districts. In short, in the creation of a province neither Congress nor the Executive can replace the minimum population requirement with a land area requirement because the creation of a province necessarily creates at the same a legislative district, which under the Constitution must have a minimum population of 250,000. Because of the majority's ruling today, the House of Representatives will now count among its members a representative of a "premium" district consisting, as of the 2007 census, of only 120,813 constituents, well below the minimum population of 250,000 his peers from the other regular districts represent. This malapportionment tolerates, on the one hand, vote undervaluation in overpopulated districts, and, on the other hand, vote overvaluation in underpopulated ones, in clear breach of the "one person, one vote" rule rooted on the Equal Protection Clause. To illustrate, the 120,813 inhabitants of Dinagat Islands province are entitled to send one representative to the House of Representatives. In contrast, a legislative district in Metro Manila needs 250,000 inhabitants to send one representative to the House of

Representatives. Thus, one vote in Dinagat Islands has the weight of more than two votes in Metro Manila for the purpose of representation in the House of Representatives. This is not what our "one person, one vote" representative democracy is all about. CTaIHE What special and compelling circumstances have the majority found that entitle the inhabitants of Dinagat Islands to such a privileged position? Do the inhabitants of Dinagat Islands have more than twice the IQ of inhabitants of Metro Manila? Do the inhabitants of Dinagat Islands pay more than twice the amount of taxes that inhabitants of Metro Manila pay? Are the inhabitants of Dinagat Islands the chosen people of God to lead this country to greatness? Have the Filipino people, in a plebiscite, agreed to confer on the inhabitants of Dinagat Islands such privileged position, which is the only constitutionally justifiable way to grant such privileged status? Indeed, the gross malapportionment this case presents is just as constitutionally damaging as that in Aquino v. Commission on Elections 10 where the population of the reapportioned five legislative districts in Camarines Sur, based on relevant census, fluctuated from a high of 439,043 (Third District) to a low of 176,383 (First District). Aquino v. Commission on Elections, and now this Dinagat Islands province case, will mangle beyond recognition the bedrock constitutional principles of proportional representation in the House of Representatives, as well as the egalitarian rule of "one person, one vote" universally honored in all modern civilized societies and rooted in the Equal Protection Clause. With Aquino v. Commission on Elections, a legislative district in provinces can be created with no minimum population requirement. Thus, a municipality with a population of only 25,000 can have a legislative district. With this Dinagat Islands province case, a province, and necessarily a legislative district, can be created with a population of only 120,000 or even less. In fact, under both Aquino v. Commission on Elections and this Dinagat Islands province case, there is no minimum population requirement whatsoever in the creation of legislative districts in provinces, and thus even a barangay with a population of 1,000 can be a legislative district. In sharp contrast, a legislative district in cities can only be created with a minimum population of 250,000 as expressly required in the Constitution. To repeat, the majority has thrown into the dustbin of history the bedrock democratic principles of proportional representation in the House of Representatives and the "one person, one vote" rule rooted in the Equal Protection Clause both of which are enshrined in our Constitution and in our democratic way of life. Where is the majority of this Court bringing our representative democracy? Third. Quasi-malapportionment laws like RA 9355 are double-edged knives thrust at the heart of the anti-dynastic vision of the 1987 Constitution it fosters entrenchment of political dynasties and fuels feudalistic practices by assuring political dynasties easy access to public funds. TAESDH

Members of Congress are entitled to an equal share of pork barrel funds regardless of the size of their constituencies. Thus, each seat in the House of Representatives translates to a potent platform for congressmen to cultivate patronage by doling out development, livelihood and support projects using pork barrel funds allocated in annual budgets. For each new province created entailing at the same time the creation of a legislative district a pipeline to a huge pool of resources is opened, with the Congressman enjoying wide discretion on how and where he will dispense such legislative largesse. Under the majority's ruling, not only land area but also population is immaterial in creating island provinces. This is an open invitation to ruling political clans strategically situated in this country's thousands of islands to sponsor the creation of more underpopulated provinces within their political bailiwicks, 11 enabling them to capture more pork barrel funds, thus tightening their grip on the levers of power. This inevitably fuels the feudal practices plaguing Philippine local politics by fortifying patron (congressman) ward (constituents) relations upon which dynastic politics thrive. All this at the expense of taxpayers, mostly residing in city legislative districts with minimum populations of 250,000, who surely would not want their taxes to be spent as pork barrel funds of political dynasties in underpopulated legislative districts in island provinces. The 1987 Constitution is not neutral on the scourge of dynastic politics, a phenomenon that concentrates political power and public resources within the control of few families whose members alternatively hold elective offices, deftly skirting term limits. Its exclusionary effect on access to public service led the framers of the 1987 Constitution to mandate that the State "guarantee equal access to opportunities for public service" and that Congress "prohibit political dynasties . . . ." 12 To the Filipino people's misfortune, Congress' non-implementation of this constitutional directive is now aggravated by this Court's wantonly loose translation of the Constitution's apportionment standard of proportional representation. 13 Thus, instead of ensuring compliance with the Constitution's mandate prohibiting political dynasties, this Court has turned complicit to local politicians' predilection for dynastic entrenchment. Fourth. Far from being dispensable components in the creation of local government units, population and land area not income are the pivotal factors in funding local government units. Under the Local Government Code, these components determine 75% of the share from the national taxes (Internal Revenue Allotment or IRA) each local government unit receives, the lifeblood of their operations, based on the following formula: STADIH (a) (b) (c) Population Fifty percent (50%) Land Area Twenty-five percent (25%) Equal sharing Twenty-five percent (25%). 14

xxx

xxx

xxx

Thus, population, with a weight of 50%, ranks first in importance in determining the financial entitlement of local government units, followed by land area with a weight of 25%. By treating Dinagat Islands' land area of 802.12 square kilometers as compliant with the 2,000 square kilometers minimum under Section 461, the majority effectively included in their land area computation the enclosed marine area or waters of Dinagat Islands. This disposition not only reverses, without cause, decades' old jurisprudence, 15 it also wreaks havoc on the national government's allocation of the internal revenue allotment to existing island provinces which would be justified in invoking today's ruling to clamor for increased revenue shares due to increased "land area." In short, other island provinces, like Romblon, Marinduque, Sulu, Tawi-Tawi and Palawan, can now claim their enclosed marine areas as part of their "land area" in computing their share of the IRA. 16 On the part of landlocked provinces hosting large bodies of water, like Rizal, Laguna, Batangas, Cavite and Lanao del Sur, the situation is reversed. Finding themselves holding, but not surrounded by, water, the submerged territory, no matter how large, is excluded from the computation of their land area, thus proportionately lowering their share in the revenue allotment compared to their island counterparts. Thus, in its zeal to legalize the creation of an obviously disqualified local government unit, the majority unwittingly creates classes of elite and disadvantaged provinces, using the most arbitrary factor of geographic accident as basis for classification. Even under the most benign equal protection analysis, this does not pass constitutional muster. Fifth. The Constitution and the Local Government Code are normative guides for courts to reasonably interpret and give expression to the will of the Filipino people as encoded in their provisions. Members of this Court go beyond the bounds of their sworn duties when they second guess the intent of Constitution's framers and the people's elected representatives, pretending to act as if they themselves have been accorded electoral mandate to amend statutes as they see fit. No amount of rhetoric singing paeans to the virtues of promoting local autonomy can hide the blatant judicial legislation the majority has succeeded in doing here today, to the detriment of the Constitution's requirements of proportional representation in the House of Representatives, equal protection under the law and the prohibition against political dynasties, not to mention the blatant violation of Section 461 of the Local Government Code. ECTSDa Accordingly, I vote to DENY the Motion to Recall Entry of Judgment, the Motion for Leave to Intervene and to File and Admit Intervenors' Motion for Reconsideration of the Resolution dated 20 July 2010, and the Motion for Reconsideration of the Resolution dated 12 May 2010 filed by the intervenors.

BRION, J., dissenting: I join the Dissents of Justices Antonio T. Carpio and Diosdado M. Peralta on the strict merits of the case on why, based on the merits, Republic Act No. 9355 (RA 9355), otherwise known as An Act Creating the Province of Dinagat Islands, should be declared unconstitutional. Additionally, I submit this Dissenting Opinion to express my objections in the strongest terms against the transgressions the Court committed in ruling on this case. The result, which is obvious to those who have been following the developments in this case and current Supreme Court rulings, is another flip-flop, made worse by the violations of the Court's own Internal Rules. 1 This is not, of course, the Court's first flip-flop in recent memory; we did a couple of remarkable somersaults in our rulings in the case of League of Cities of the Philippines, et al. v. Comelec. 2 This Dissent is written in the hope that the Court's violation of its own rules in this case will be the last, and that the Court will re-think its disposition of this case. The Court rendered its Decision in this case on February 10, 2010, declaring RA 9355 unconstitutional. The Office of the Solicitor General (OSG), in behalf of the respondents, and respondent Governor Geraldine Ecleo-Villaroman filed their separate Motions for Reconsideration. These were their first motions for reconsideration. On May 12, 2010, the Court denied these motions for lack of merit. On May 26 and 28, 2010, respondent Governor Ecleo-Villaroman and the OSG respectively filed their 2nd Motions for Reconsideration. The Court simply noted these motions without action as they are prohibited pleadings under Section 2, Rule 52 of the Rules of Court. This procedural rule states: Sec. 2. Second Motion for Reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. cEASTa The Court's Decision of February 10, 2010 became final and executory, and Entry of Judgment was made by the Clerk of Court on May 18, 2010. At that point, the Decision of the Court should have been beyond recall. On June 18, 2010 (or a full month after entry of judgment), new parties, namely Congressman Francisco T. Matugas, Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr., Hon. Vicente G. Castrence, Hon. Mamerto D. Galamida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol, filed a Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010. They prayed that they be allowed to intervene in the case since they were the newly elected officials of Surigao del Norte in the May 10, 2010 elections, who were in danger of losing their positions once the Court's February 10, 2010 decision, declaring

R.A. No. 9355 unconstitutional, attained finality. Effectively, they took up the cause of the original respondent Province of Surigao del Norte then represented by former Governor Robert Ace Barbers. The Court denied the motion in its Resolution of July 20, 2010, pursuant to Section 2, Rule 19 of the Rules of Court which allows a motion for intervention only before the rendition of judgment by the trial court. Applying this rule to an action originally filed with the Court, we ruled that a motion for intervention could only be filed before, and not after, the final judgment in the case. Respondent Governor Ecleo-Villaroman filed, on October 22, 2010, an Urgent Omnibus Motion (To Resolve Motion for Leave of Court to Admit 2nd Motion for Reconsideration and, to Set Aside Entry of Judgment). Thus, despite the Entry of Judgment, she sought the Court's ruling on her 2nd Motion for Reconsideration that had simply been Noted Without Action by the Court for being a prohibited pleading. The ploy to reopen the case and escape from the consequences of the final judgment was apparent from the move to set aside the Entry of Judgment. Effectively, she was moving for the third time to secure the review of the February 10, 2010 Decision that had been declared final, and to re-submit the case for another deliberation on the merits. Side by side with the original respondent, the would-be intervenors despite the lack of personality to act on the case filed on October 29, 2010 an Urgent Motion to Recall Entry of Judgment. Of course, this move was duly orchestrated with the respondents whose own motions were filed a week earlier. This was a motion the would-be intervenors had no personality to file since their proposed intervention, at that point, stood denied. ADEaHT The Court en banc deliberated on the case and by a vote of 9 in favor and 6 against, decided to lift the entry of judgment and allow the intervention of the new parties. By the same vote, it voted to completely reverse the Decision of February 10, 2010 and declare RA 9355, entitled An Act Creating the Province of Dinagat Islands, constitutional. In acting as it did, the Court did not hesitate, by a 9-6 vote, to disregard existing rules that the Court itself created. After this vote, the ponente modified the majority resolution in reaction to the original version of this Dissent. This time, the majority Resolution claimed that it was acting only on the would-be intervenors' Motion to Lift Entry of Judgment, not on the original respondents' motion to set aside judgment. The ploy apparently was to avoid the Dissent's position that the Court acted on a prohibited 2nd motion for reconsideration without the required vote. The Court, for reasons of its own, has chosen to live with the public fiction that 2nd motions for reconsideration are prohibited pleadings pursuant to Section 2, Rule 52 of

the Rules of Court, cited and quoted above. In actual practice, exceptions to this Rule are allowed and what governs is Section 3, Rule 15 of the Internal Rules of the Supreme Court which provides: Sec. 3. Second Motion for Reconsideration. The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court's declaration. [Emphases supplied.] In the present case, the Court simply noted without action respondent Governor Ecleo-Villaroman's and the OSG's 2nd motions for reconsideration because they are prohibited pleadings. The Court thereafter declared its judgment final, and entry of judgment followed. Thus, when Governor Ecleo-Villaroman sought to lift the entry of judgment, her motion which sought to reopen the case for another review was effectively a third motion for reconsideration that should have been governed by Section 3, Rule 15 of the Internal Rules. With the modified position that the Court was acting on the movants-intervenors' motion to lift entry of judgment, the majority sought to avoid the restrictive rule on 2nd motions for reconsideration. ASTcaE How the Court acted on the respondents' and would-be intervenors' motions is interesting. a. Violation of the Rule on Reconsideration. By a 9-6 vote, the Court declared the entry of judgment lifted. In so doing, it completely disregarded its own rule that any 2nd motion for reconsideration can only be entertained through a vote of 2/3 of the actual membership, or of 10 members, of the Court. It likewise disregarded the rule that a second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court's declaration. It conveniently forgot, too, when it subsequently claimed that the motion it was considering was not by respondent Governor Ecleo but by the would-be intervenors, that what an original party could no longer do with respect to a final decision, would-be intervenors practically representing the same interests and who had not even been recognized by this Court cannot also do; otherwise, what is directly prohibited is allowed through indirect means. Unbelievably, among the majority's supporting arguments to support their violation, was that (1) a motion to lift entry of final judgment is not a motion for reconsideration of the decision sought to be declared non-final; and that (2) no exact provision of the Internal Rules covers the lifting of an entered final judgment.

b. Violation of the Rule on Finality of Judgments. Worse than the above transgression, the Court turned a blind eye to the finality of the judgment it had reached in the case. The judgment in a case becomes final by operation of law (after the lapse of fifteen [15] days from the parties' receipt of the judgment) or upon the Court's declaration of the judgment's finality. Entry of Judgment by the Clerk of Court follows the finality of a judgment, i.e., if no motion for reconsideration is filed with the Court within fifteen (15) days from the parties' receipt of the judgment. As mentioned above, no second motion for reconsideration can be entertained once a judgment has become final. In this case, the Court disregarded its own rules and entertained a motion to lift the entry of judgment and to reopen the case. It was not an ordinary violation as the judgment lifted was already final. The respondent Governor's motion to lift entry of judgment was effectively a third motion for reconsideration (as its objective is to open the final decision for another consideration) and its consequences need no elaborate argument to be understood. For the would-be intervenors, it was a matter of putting the cart before the horse a move to lift the entry of judgment even before the would-be intervenors had their personality recognized by the Court. aDSIHc The principle of immutability of a final judgment stands as one of the pillars supporting a strong, credible and effective court. To quote what this Court has repeatedly stated on this principle: "It is a hornbook rule that once a judgment has become final and executory, it may no longer be modified in any respect, even if the modification is meant to correct an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land, as what remains to be done is the purely ministerial enforcement or execution of the judgment. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional errors, the judgment of adjudicating bodies must become final and executory on some definite date fixed by law. [. . .], the Supreme Court reiterated that the doctrine of immutability of judgment is adhered to by necessity notwithstanding occasional errors that may result thereby, since litigations must somehow come to an end for otherwise, it would "be even more intolerable than the wrong and injustice it is designed to protect." 3 [Emphases supplied.] This same principle, incidentally, is what we teach students in law schools as a basic bedrock principle in the administration of justice. This is the same principle, too, that is often asked in the bar examinations. Unfortunately, this is the same principle that the Court violated, through a 9-6 vote, when it decided to lift its Entry of Judgment and to entertain the reopening of the final judgment in the case for renewed

consideration. This, indeed, is a most unusual move. Did the Majority truly fail to appreciate that the lifting of the entry of judgment is no different in effect from entertaining a motion for reconsideration, and can be made, if at all, by the actual parties, not by would-be intervenors? If a 2nd motion for reconsideration is prohibited and requires a 2/3 vote, can a vote that removes the character of finality from a judgment be any less? c. Violation of the Rule on Intervention. The Court disregarded as well the rule on interventions. 4 The motion for intervention was initially denied since the Court's decision was already final, and intervention could no longer be allowed. To go around this rule, the would-be intervenors, without first successfully securing leave to intervene, instead filed its own motion to lift entry of judgment the same 2nd motion from the original respondents that the Court previously simply noted without action. The Court granted the motion to lift judgment by a 9-6 vote, under the fiction that it was an intervening party, not the barred original respondents, who had asked for it. cIHSTC To complete this blow-by-blow account, the respondents' legal tactician used the ploy of first reopening the case (initially through the original respondents, and subsequently solely through the would-be intervenors), and thereafter moved to allow intervention since the original respondents had by then exhausted their arguments for the constitutionality of RA 9355. On two previous attempts, the original respondents had failed. To get around the insurmountable block posed by the rule on 2nd motions for reconsideration, they fell back on their modified Resolution with the position that another party the would-be intervenors wanted to lift the entry of judgment. Once the entry of judgment was lifted and intervention was allowed, it was an easy step to reopen the arguments, add to what the original respondents presented, and submit the case for a ruling on the merits. The same magic numbers of course prevailed all throughout: 9 to 6. In this manner, the original and final ruling of the Court, in what is commonly known as the "Dinagat case" was reversed. Unlike the case of Lazarus who rose from the dead through a miracle, Dinagat resurrected because the Court disregarded its own rules and established jurisprudential principles. Of course, it can similarly be called a miracle as no reversal could have taken place if just one of the series of transgressions pointed out did not take place. How such resurrection can happen in the Supreme Court is a continuing source of wonder! PERALTA, J., dissenting: With due respect to the ponente, I register my dissent. On February 10, 2010, the Court rendered a Decision in the instant case, the dispositive portion of which reads:

WHEREFORE, the petition is GRANTED. Republic Act No. 9355, otherwise known as An Act Creating the Province of Dinagat Islands, is hereby declared unconstitutional. The proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared NULL and VOID. cSDHEC The Office of the Solicitor General (OSG) filed a motion for reconsideration in behalf of public respondents, and respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, also filed a separate motion for reconsideration of the Decision dated February 10, 2010. On May 12, 2010, the Court issued a Resolution denying the motions for reconsideration of the OSG and respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, for lack of merit. A copy of the Resolution dated May 12, 2010 was received by the OSG on May 13, 2010, while respondent Governor Geraldine Ecleo-Villaroman, representing the New Province of Dinagat Islands, received a copy of the said Resolution on May 14, 2010. The Decision dated February 10, 2010 became final and executory on May 18, 2010, as evidenced by the Entry of Judgment 1 issued by the Clerk of Court. On May 26, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, filed a Motion for Leave to Admit Motion for Reconsideration (of the Resolution dated May 12, 2010) and the said Motion for Reconsideration, while on May 28, 2010, the OSG filed a Motion for Leave to File the Attached 2nd Motion for Reconsideration (of the Resolution dated May 12, 2010) and the aforesaid Motion for Reconsideration. On June 29, 2010, the Court noted without action the foregoing motions of respondents, as the said pleadings were considered second motions for reconsideration of the Decision, which shall not be entertained by the Court, in accordance with Section 2, Rule 52 of the Rules of Court, thus: SEC. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. On June 18, 2010, movants-intervenors Congressman Francisco T. Matugas, Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr., Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol filed a Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010. STcHDC Movants-intervenors claimed that they have legal interest in this case as they are the duly elected officials 2 of Surigao del Norte in the May 10, 2010 elections, and their

positions will be affected by the nullification of the election results in the event that the Resolution dated May 12, 2010 in this case is not reversed and set aside. On March 9, 2010, the Commission on Elections issued Resolution No. 8790, 3 the pertinent portion of which reads: xxx xxx xxx

NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that: a. If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two separate provinces;

b. If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del Norte. xxx xxx xxx

c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will have to be nullified for the same reasons given in item "b" above. A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted. IHcTDA Since movants-intervenors' elective positions would be adversely affected if the Resolution dated May 12, 2010 would not be reversed, they prayed that they be allowed to intervene in this case and to file their Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010, and that their motion for reconsideration be admitted by the Court. In a Resolution dated July 20, 2010, the Court denied the Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010. The Court held that, fundamentally, the allowance or disallowance of a motion to intervene is addressed to the sound discretion of the court. 4 Under Section 2, Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of judgment by the trial court. The Court ruled that

since this case originated from an original action filed before this Court, the appropriate time to file the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon. 5 It should be noted that this case was decided on February 10, 2010, and the motions for reconsideration of the Decision were denied in the Resolution dated May 12, 2010. The Decision dated February 10, 2010 became final and executory on May 18, 2010. Movants-intervenors' Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 was filed only on June 18, 2010, clearly after the Decision dated February 10, 2010 had became final and executory; hence, the said motion was correctly denied. The ponente submits that the Court should grant movants-intervenors' motion for reconsideration of the July 20, 2010 Resolution, in full agreement with their position that their interest in this case arose only after they were elected to their respective positions during the May 10, 2010 elections. As stated by the ponente, in their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three main arguments: (1) that the passage of R.A. No. 9355 operates as an act of Congress amending Section 461 of R.A. No. 7160 (the Local Government Code of 1991); (2) that the exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case. cHSIDa On the merits of the motion for intervention, the ponente urges the Court to take a hard and intent look at the first and second arguments raised by movantsintervenors. Movants-intervenors contended that R.A. No. 9355 is equivalent to the passage of an amendatory law to the Local Government Code, as instructed in the case of League of Cities of the Phils., et al. v. COMELEC, et al.: 6 Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the amendatory RA 9009 upped the already codified income requirement from PhP20 million to PhP100 million. At the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators. (Emphasis and [u]nderscoring supplied [by movants-intervenors].)

Defining legislative power, movants-intervenors cited Yakazi Torres Manufacturing, Inc. v. Court of Appeals, 7 thus: The legislative power has been described generally as the power to make, alter, and repeal laws. The authority to amend, change, or modify a law is thus part of such legislative power. It is the peculiar province of the legislature to prescribe general rules for the government of society. (Emphasis and [u]nderscoring supplied [by movants-intervenors].) In view of the foregoing, movants-intervenors argued that the Local Government Code is susceptible to all legislative processes, including amendments, repeals or modifications. They asserted that there is no impediment for another statute, including R.A. No. 9355, to amend or modify the Local Government Code as regards the criteria established for the creation of a province. They noted that R.A. No 9355 relied on Article 9 (paragraph 2) of the Rules and Regulations Implementing the Local Government Code of 1991, particularly the provision that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Movants-intervenors asserted that the said provision should be deemed incorporated in R.A. No. 9355; hence, they purported that the land area requirement in the Local Government Code was modified by R.A. No. 9355. They contended that "R.A. No. 9355, with the incorporated Article 9 (2) of the IRR of the Local Government Code, became part of the Local Government Code." TIaCcD Movants-intervenors' argument is unmeritorious. As cited in Yakazi Torres Manufacturing, Inc. v. Court of Appeals, legislative power is the power to make, alter, and repeal laws; thus, the authority to amend, change, or modify a law is part of such legislative power. However, in this case, R.A. No. 9355, is not a law amending the Local Government Code on the criteria for the creation of a province. Instead, R.A. No. 9355 is a statute creating the Province of Dinagat Islands; hence, subject to the constitutional provision on the creation of a province. The constitutional provision on the creation of a province found in Section 10, Article X of the Constitution states: SEC. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. 8 Pursuant to the Constitution, the Local Government Code of 1991, in Section 461 thereof, prescribed the criteria for the creation of a province. 9 Hence, R.A. No. 9355 did not amend the Local Government Code, but was subject to the criteria contained in Section 461 of the Local Government Code in creating the Province of Dinagat Islands. Moreover, Section 6 of the Local Government Code provides:

SEC. 6. Authority to Create Local Government Units. A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code. (Emphasis and underscoring supplied.) Thus, even the Local Government Code clearly provides that Congress may enact a law creating a local government unit, which in this case involves the creation of a province, but such creation is subject to such limitations and requirements prescribed in the Local Government Code. Hence, the creation of the Province of Dinagat Islands is subject to the requirements contained in Section 461 of the Local Government Code. Since R.A. No. 9355 failed to comply with the land area or population requirement in the creation of the province, it was declared unconstitutional in the Decision dated February 10, 2010. cEAHSC League of Cities of the Philippines v. Commission on Elections, which was cited by movants-intervenors, does not apply to this case. The Court held in its Resolution dated May 12, 2010, thus: In League of Cities of the Philippines v. Commission on Elections, the Court held that the 16 cityhood laws, whose validity were questioned therein, were constitutional mainly because it found that the said cityhood laws merely carried out the intent of R.A. No. 9009, now Sec. 450 of the Local Government Code, to exempt therein respondents local government units (LGUs) from the P100 million income requirement since the said LGUs had pending cityhood bills long before the enactment of R.A. No. 9009. Each one of the 16 cityhood laws contained a provision exempting the municipality covered from the P100 million income requirement. In this case, R.A. No. 9355 was declared unconstitutional because there was utter failure to comply with either the population or territorial requirement for the creation of a province under Section 461 of the Local Government Code. Contrary to the contention of the movants-intervenors, Article 9 (2) of the Rules and Regulations Implementing the Local Government Code, which exempts a proposed province from the land area requirement if it is composed of one or more islands, cannot be deemed incorporated in R.A. No. 9355, because rules and regulations cannot go beyond the terms and provisions of the basic law. Thus, in the Decision dated February 10, 2010, the Court held that Article 9 (2) of the Implementing Rules of the Local Government Code is null and void, because the exemption is not found in Section 461 of the Local Government Code. 10 There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law. 11

Next, movants-intervenors stated that assuming that Section 461 of the Local Government Code was not amended by R.A. No. 9355, they still sought reconsideration of the Resolution dated May 12, 2010, as they adopted the interpretation of the ponente and Justice Perez of Section 461 of the Local Government Code in their respective dissenting opinions. They asserted that the correct interpretation of Section 461 of the Local Government Code is that of Justice Nachura. AECacT It must be stressed that the movants-intervenors' assertion was already answered in the Resolution dated May 12, 2010, denying the motions for reconsideration of the OSG and Governor Geraldine Ecleo-Villaroman, representing the Province of Dinagat Islands. The Court, in the said Resolution, answered the same contention, thus: The movants now argue that the correct interpretation of Sec. 461 of the Local Government Code is the one stated in the Dissenting Opinion of Associate Justice Antonio B. Nachura. In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355 failed to comply with the population requirement. However, he contends that the Province of Dinagat Islands did not fail to comply with the territorial requirement because it is composed of a group of islands; hence, it is exempt from compliance not only with the territorial contiguity requirement, but also with the 2,000-square-kilometer land area criterion in Sec. 461 of the Local Government Code, which is reproduced for easy reference:

SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. DEHcTI

Justice Nachura contends that the stipulation in paragraph (b) qualifies not merely the word "contiguous" in paragraph (a) (i) in the same provision, but rather the entirety of paragraph (a) (i) that reads: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau[.] He argues that the whole paragraph on contiguity and land area in paragraph (a) (i) above is the one being referred to in the exemption from the territorial requirement in paragraph (b). Thus, he contends that if the province to be created is composed of islands, like the one in this case, then, its territory need not be contiguous and need not have an area of at least 2,000 square kilometers. He asserts that this is because as the law is worded, contiguity and land area are not two distinct and separate requirements, but they qualify each other. An exemption from one of the two component requirements in paragraph (a) (i) allegedly necessitates an exemption from the other component requirement because the non-attendance of one results in the absence of a reason for the other component requirement to effect a qualification. Similarly, the OSG contends that when paragraph (b) of Section 461 of the Local Government Code provides that the "territory need not be contiguous if it comprises two (2) or more islands," it necessarily dispenses the 2,000 sq. km. land area requirement, lest such exemption would not make sense. The OSG argues that in stating that a "territory need not be contiguous if it comprises two (2) or more islands," the law could not have meant to define the obvious. The land mass of two or more island will never be contiguous as it is covered by bodies of water. It is then but logical that the territory of a proposed province that is composed of one or more islands need not be contiguous or be at least 2,000 sq. km. The Court is not persuaded. Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the Local Government Code provides: SEC. 7. Creation and Conversion. As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: TcSHaD (a) Income. It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; (b) Population. It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and

(c) Land area. It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). It must be emphasized that Section 7 above, which provides for the general rule in the creation of a local government unit, states in paragraph (c) thereof that the land area must be contiguous and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Therefore, there are two requirements for land area: (1) The land area must be contiguous; and (2) the land area must be sufficient to provide for such basic services and facilities to meet the requirements of its populace. A sufficient land area in the creation of a province is at least 2,000 square kilometers, as provided by Section 461 of the Local Government Code. Thus, Section 461 of the Local Government Code, providing the requisites for the creation of a province, specifically states the requirement of "a contiguous territory of at least two thousand (2,000) square kilometers." Hence, contrary to the arguments of both movants, the requirement of a contiguous territory and the requirement of a land area of at least 2,000 square kilometers are distinct and separate requirements for land area under paragraph (a) (i) of Section 461 and Section 7 (c) of the Local Government Code. TAaHIE However, paragraph (b) of Section 461 provides two instances of exemption from the requirement of territorial contiguity, thus: (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. Contrary to the contention of the movants, the exemption above pertains only to the requirement of territorial contiguity. It clearly states that the requirement of territorial contiguity may be dispensed with in the case of a province comprising two or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. Nowhere in paragraph (b) is it expressly stated or may it be implied that when a province is composed of two or more islands or when the territory of a province is separated by a chartered city or cities, such province need not comply with the land area requirement of at least 2,000 square kilometers or the requirement in paragraph (a) (i) of Section 461 of the Local Government Code.

Where the law is free from ambiguity, the court may not introduce exceptions or conditions where none is provided from considerations of convenience, public welfare, or for any laudable purpose; neither may it engraft into the law qualifications not contemplated, nor construe its provisions by taking into account questions of expediency, good faith, practical utility and other similar reasons so as to relax noncompliance therewith. Where the law speaks in clear and categorical language, there is no room for interpretation, but only for application. SaCIAE Further, movants-intervenors pointed out that pursuant to R.A. No. 9355, the Province of Dinagat Islands has been organized and is functioning as a province, which cannot just be ignored. Thus, a more realistic and pragmatic view should have been adopted by the Court in its Resolution dated May 12, 2010 following the Operative Fact Doctrine, citing Planters Products, Inc. v. Fertiphil Corporation. 12 In Planters Products, Inc. v. Fertiphil Corporation, petitioner Planters Products, Inc. (PPI) and private respondent Fertiphil were private corporations, which were both engaged in the importation and distribution of fertilizers, pesticides and agricultural chemicals. On June 3, 1985, then President Ferdinand Marcos issued LOI No. 1465, which provides: 3. The Administrator of the Fertilizer Pesticide Authority to include in its fertilizer pricing formula a capital contribution component of not less than P10 per bag. This capital contribution shall be collected until adequate capital is raised to make PPI viable. Such capital contribution shall be applied by FPA to all domestic sales of fertilizers in the Philippines. (Underscoring supplied) Pursuant to the LOI, Fertiphil paid P10.00 for every bag of fertilizer it sold in the domestic market to the Fertilizer and Pesticide Authority (FPA), which amount FPA remitted to the depositary bank of PPI. Fertiphil paid FPA P6,689,144.00 from July 8, 1985 to January 24, 1986. After the 1986 EDSA Revolution, FPA voluntarily stopped the imposition of the P10.00 levy. Fertiphil demanded from PPI a refund of the amounts it paid under LOI No. 1465, but PPI refused to accede to the demand. Fertiphil filed a complaint for collection and damages against FPA and PPI with the Regional Trial Court (RTC) of Makati City. It questioned the constitutionality of LOI No. 1465 for being unjust, unreasonable, oppressive, invalid and an unlawful imposition that amounted to a denial of due process of law. Fertiphil alleged that the LOI solely favored PPI, a privately owned corporation, which used the proceeds to maintain its monopoly of the fertilizer industry. The RTC ruled in favor of Fertiphil, and ordered PPI to pay Fertiphil the sum of P6,698,144.00 with interest at 12% from the time of judicial demand; the sum of P100,000.00 as attorney's fees; and the cost of suit. Ruling that the imposition of the P10.00 levy was an exercise of the State's inherent power of taxation, the RTC invalidated the levy for violating the basic principle that taxes can only be levied for

public purpose. On appeal, the Court of Appeals affirmed the RTC Decision, but deleted the award of attorney's fees. SHaIDE The Court upheld the decision of the Court of Appeals as LOI No. 1465 failed to comply with the public purpose requirement for tax laws. As regards the argument of PPI that Fertiphil cannot seek a refund based on the Operative Fact Doctrine, the Court held: The general rule is that an unconstitutional law is void; the doctrine of operative fact is inapplicable. PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is declared unconstitutional. It banks on the doctrine of operative fact, which provides that an unconstitutional law has an effect before being declared unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it is subsequently declared to be unconstitutional. We cannot agree. It is settled that no question, issue or argument will be entertained on appeal, unless it has been raised in the court a quo. PPI did not raise the applicability of the doctrine of operative fact with the RTC and the CA. It cannot belatedly raise the issue with Us in order to extricate itself from the dire effects of an unconstitutional law. At any rate, We find the doctrine inapplicable. The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. The general rule is supported by Article 7 of the Civil Code, which provides: ART. 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot

always be ignored. The past cannot always be erased by a new judicial declaration. CSTEHI The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. Here, We do not find anything iniquitous in ordering PPI to refund the amounts paid by Fertiphil under LOI No. 1465. It unduly benefited from the levy. It was proven during the trial that the levies paid were remitted and deposited to its bank account. Quite the reverse, it would be inequitable and unjust not to order a refund. To do so would unjustly enrich PPI at the expense of Fertiphil. Article 22 of the Civil Code explicitly provides that "every person who, through an act of performance by another comes into possession of something at the expense of the latter without just or legal ground shall return the same to him." We cannot allow PPI to profit from an unconstitutional law. Justice and equity dictate that PPI must refund the amounts paid by Fertiphil. 13 In this case, the general rule applies that an unconstitutional law is void, and produces no legal effect. As stated in the decision above, the doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. The said doctrine recognizes that the actual existence of a statute prior to a determination of unconstitutionality is an operative fact, and may have consequences which cannot always be ignored. The doctrine was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy 14 or would put in limbo the acts done by a municipality in reliance upon a law creating it in the case of Municipality of Malabang v. Benito. 15 In Municipality of Malabang v. Benito, the Court ruled that Executive Order 386 creating the Municipality of Malabang is void, and respondent officials were permanently restrained from performing the duties and functions of their respective offices. Nevertheless, the Court stated there was no basis for respondent officials' apprehension that the invalidation of the executive order creating Balabagan would have the effect of unsettling many an act done in reliance upon the validity of the creation of that municipality, citing Chicot County Drainage District v. Baxter State Bank, thus: 16 AEIDTc . . . The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior

determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. 17 Therefore, based on the foregoing, any question on the validity of acts done before the invalidation of R.A. No. 9355 may be raised before the courts. Lastly, movants-intervenors contended that the inhabitants of the Province of Dinagat Islands have expressed their will, through their votes in a plebiscite, to be a province; hence, the Court should uphold the will of the people and uphold the validity of R.A. No. 9355. The contention does not persuade. The validity of R.A. No. 9355 creating the province of Dinagat Islands depends on its compliance with Section 10, Article X of the Constitution, which states: SEC. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. 18 Although the political units directly affected by the creation of the Province of Dinagat Islands approved the creation of the said province, R.A. No. 9355 failed to comply with the criteria for the creation of the province contained in Section 461 of the Local Government Code; hence, it was declared unconstitutional. As cited in the Resolution dated May 12, 2010, Tan v. Comelec 19 held: . . . [T]he fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this court to yield to the respondents' urging that, as there has been fait accompli, then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions,

either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli. CHIScD In view of the foregoing, the Court acted in accordance with its sound discretion in denying movants-intervenors' Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 as the issues raised by them lacked merit or had already been resolved by the Court in its Decision dated February 10, 2010 and its Resolution dated May 12, 2010 denying respondents' Motion for Reconsideration. Moreover, under Section 2, Rule 19 of the Rules of Court, a motion to intervene may be filed at any time before rendition of judgment by the trial court. Since this case originated from an original action filed before this Court, the Court properly ruled that the appropriate time to file the motion-in-intervention is before and not after resolution of this case, citing Republic v. Gingoyon. 20 Further, when movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 on June 18, 2010, the Decision of February 10, 2010 had already become final and executory on May 18, 2010. Aside from urging the Court to take a hard look on the first and second arguments raised by movants-intervenors, the ponente also wants the Court to consider his arguments for a reconsideration of the Decision in this case. The ponente states that the Court must bear in mind that the central policy considerations in the creation of local government units are economic viability, efficient administration and capability to deliver basic services, and the criteria prescribed by the Local Government Code, i.e., income, population and land area, are all designed to accomplish these results. He adds that in this light, Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing emphasis on which of them should enjoy preferential consideration. The ponente calls the attention of the majority to the primordial criterion of economic viability in the creation of local government units, particularly of a province, as intended by the framers of R.A. No. 7160. The argument of the ponente has been discussed in his earlier Dissenting Opinion. It must be pointed out that from the congressional debates cited by the ponente, the framers of R.A. No. 7160 or the Local Government Code of 1991 finally came out with the end result, that is, Section 461 of R.A. No. 7160, which is the basis for the creation of a province. Section 461 of R.A. No. 7160 provides: HICEca SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. Thus, the requisites for the creation of a province, as provided by R.A. No. 7160, is an annual income of not less than P20 million and either a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau, or a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. As the wordings of the law are plain and clear, compliance with the territorial requirement or population requirement cannot be made light of or disregarded. In this case, R.A. 9355 creating the Province of Dinagat Islands failed to comply with either the territorial or the population requirement of the Local Government Code. The Court stated in its Resolution dated May 12, 2010, thus: As the law-making branch of the government, indeed, it was the Legislature that imposed the criteria for the creation of a province as contained in Sec. 461 of the Local Government Code. No law has yet been passed amending Sec. 461 of the Local Government Code, so only the criteria stated therein are the bases for the creation of a province. The Constitution clearly mandates that the criteria in the Local Government Code must be followed in the creation of a province; hence, any derogation of or deviation from the criteria prescribed in the Local Government Code violates Section 10, Art. X of the Constitution. aTSEcA Further, the ponente states that the provisions of both R.A. No 7160 and the Rules and Regulations Implementing the Local Government Code of 1991 (LGC-IRR) show that with respect to the creation of municipalities, component cities, and provinces, the three indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for. He points out that the exemption from the land area requirement when the local government unit to be created consists of one (1) or more islands is expressly provided in Section 442 and Section 450 of R.A. No. 7160 and the LGC-IRR with respect to the creation of municipalities and component cities, respectively, but the exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of R.A. No. 7160, but is expressly stated under Article 9 (2) of the LGC-IRR.

The ponente opines that there does not appear any rhyme or reason why this exemption should apply to cities and municipalities, but not to provinces. He stated that considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or groups of islands would form part of the land area of a newly-created province than in most cities or municipalities. According to the ponente, it is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for cities) of R.A. No. 7160, but was inadvertently omitted in Section 461 (for provinces). The ponente submits that when the exemption was expressly provided in Article 9 (2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of R.A. No. 7160 and reflect the true legislative intent; thus, it would be in order for the Court to uphold the validity of Article 9 (2), LGC-IRR. The ponente also submits that Article 9 (2) of the LGC-IRR amounts to an executive construction of the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect. He contends that it is actually a detail expressly provided by the Oversight Committee to fill in the void, honest mistake and oversight committed by Congress in Section 461 of R.A. No. 7160, taking into account the spirit and intent of the law. The ponente's argument does not persuade. The Local Government Code took effect on January 1, 1992, so 19 years have lapsed since its enactment. If the Legislature committed the "congressional oversight in Section 461 of R.A. No. 7160" as alleged by Justice Nachura, it would have amended Section 461, which is a function of Congress. Substantial "oversights" in the basic law, particularly as alleged with respect to Section 461 of R.A. No. 7160, cannot be corrected in the implementing rules thereof, as it is settled rule that the implementing rules of the basic law cannot go beyond the scope of the basic law. aTcSID Moreover, it should be pointed out that a province is "composed of a cluster of municipalities, or municipalities and component cities," 21 and, therefore, has a bigger land area than that of a municipality and a city, as provided by law. It is noted that the former Local Government Code (Batas Pambansa Blg. 337) did not provide for a required land area in the creation of a municipality and a city, but provided for a required land area in the creation of a province, which is 3,500 square kilometers, now lessened to 2,000 square kilometers in the present Local Government Code. If only the income matters in the creation of a province, then there would be no need for the distinctions in the population and land area requirements provided for a municipality, city and province in the present Local Government Code. It may be stated that unlike a municipality and a city, the territorial requirement of a province contained in Section 461 22 of the Local Government Code follows the general rule in Section 7, Chapter 2 (entitled General Powers and Attributes of Local Government Units) of the same Code, thus:

SEC. 7. Creation and Conversion. As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit: (a) Income. It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; (b) Population. It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and (c) Land area. It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). 23 ScaHDT Moreover, the argument that Article 9 (2) of the LGC-IRR amounts to an executive construction of the provisions, policies, and principles of R.A. No. 7160, entitled to great weight and respect, citing the case of Galarosa v. Valencia, 24 has already been ruled upon in the Decision dated February 10, 2010, thus: Further, citing Galarosa v. Valencia, the Office of the Solicitor General contends that the IRRs issued by the Oversight Committee composed of members of the legislative and executive branches of the government are entitled to great weight and respect, as they are in the nature of executive construction. The case is not in point. In Galarosa, the issue was whether or not Galarosa could continue to serve as a member of the Sangguniang Bayan beyond June 30, 1992, the date when the term of office of the elective members of the Sangguniang Bayan of Sorsogon expired. Galarosa was the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Section 146 of Batas Pambansa Blg. 337, the former Local Government Code. Section 494 of the Local Government Code of 1991 states that the duly elected presidents of the liga [ng mga barangay] at the municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve as ex officio members of the sangguniang bayan, sangguniang panglungsod, and sangguniang panlalawigan, respectively. They shall serve as such only during their term of office as presidents of the liga chapters which, in no case, shall be beyond the

term of office of the sanggunian concerned. The section, however, does not fix the specific duration of their term as liga president. The Court held that this was left to the by-laws of the liga pursuant to Article 211(g) of the Rules and Regulations Implementing the Local Government Code of 1991. Moreover, there was no indication that Sections 491 and 494 should be given retroactive effect to adversely affect the presidents of the ABC; hence, the said provisions were to be applied prospectively. The Court stated that there is no law that prohibits ABC presidents from holding over as members of the Sangguniang Bayan. On the contrary, the IRR, prepared and issued by the Oversight Committee upon specific mandate of Section 533 of the Local Government Code, expressly recognizes and grants the hold-over authority to the ABC presidents under Article 210, Rule XXIX. The Court upheld the application of the hold-over doctrine in the provisions of the IRR and the issuances of the DILG, whose purpose was to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. HSaCcE The Court held that Section 494 of the Local Government Code could not have been intended to allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian. Since the term of office of the punong barangays elected in the March 28, 1989 election and the term of office of the presidents of the ABC had not yet expired, and taking into account the special role conferred upon, and the broader powers and functions vested in the barangays by the Code, it was inferred that the Code never intended to deprive the barangays of their representation in the sangguniang bayan during the interregnum when the liga had yet to be formally organized with the election of its officers. Under the circumstances prevailing in Galarosa, the Court considered the relevant provisions in the IRR formulated by the Oversight Committee and the pertinent issuances of the DILG in the nature of executive construction, which were entitled to great weight and respect. Courts determine the intent of the law from the literal language of the law within the law's four corners. If the language of the law is plain, clear and unambiguous, courts simply apply the law according to its express terms. If a literal application of the law results in absurdity, impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the legislative history of the law, or may consider the implementing rules and regulations and pertinent executive issuances in the nature of executive construction. In this case, the requirements for the creation of a province contained in Section 461 of the Local Government Code are clear, plain and unambiguous, and its literal application does not result in absurdity or injustice. Hence, the provision in Article 9(2) of the IRR exempting a proposed province composed of one or more islands from the land-area requirement cannot be considered an executive construction of the

criteria prescribed by the Local Government Code. It is an extraneous provision not intended by the Local Government Code, and is, therefore, null and void. The ponente also stated that it may be well to remember basic policy considerations underpinning the principle of local autonomy, and cited Section 2, R.A. No 7160, which provides: 2005jurcd Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as selfreliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units. Indeed, the policy of the State is that "the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals." However, it must stressed that in the creation of the territorial and political subdivisions of the State, the requirements provided by the Local Government Code must also be complied with, which R.A. No. 9355 failed to do. Further, the ponente states that consistent with the declared policy to provide local government units local autonomy, he submits that the territory, contiguity and minimum land area requirements for prospective local government units should be construed liberally in order to achieve the desired results. He adds that this liberal interpretation is more appropriate, taking into account the rules on construction of the LGC, viz.: SEC. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules shall apply: xxx xxx xxx

(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; The ponente seeks for a liberal interpretation as regards the territorial requirement in the creation of a province based on the rules of interpretation of the general welfare provisions of the Local Government Code. General welfare is clarified in Section 16 of the Local Government Code, thus: TcEaDS

Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The Local Government Code provides that it is "[t]he general welfare provisions in this Code which shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community." Nowhere is it stated therein that the provisions for the creation of a local government unit, the province in particular, should be liberally interpreted. Moreover, since the criteria for the creation of a province under the Local Government Code are clear, there is no room for interpretation, but only application. To reiterate, the constitutional basis for the creation of a province is laid down in Section 10, Article X of the Constitution, which provides that no province may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. The criteria for the creation of a province are found in Section 461 of the Local Government Code. Moreover, Section 6 of the Local Government Code provides that "[a] local government unit may be created . . . by law enacted by congress in the case of a province . . . subject to such limitations and requirements prescribed in this Code." Based on the criteria for the creation of a province provided for in Section 461 of the Local Government, the Court found that R.A. No. 9355 creating the Province of Dinagat Islands failed to comply with the population or territorial requirement; hence, R.A. No. 9355 was declared unconstitutional. The Decision in this case was promulgated on February 10, 2010. The motions for reconsideration of the Decision was denied on May 12, 2010. The Decision of February 10, 2010 became final and executory on May 18, 2010, as evidenced by the Entry of Judgment 25 issued by the Clerk of Court. Movants-intervenors filed their Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 only on June 18, 2010, or after the resolution of the case and one month after the Decision in this case already became final and executory. Hence, the Court properly denied the said motion. EHSIcT

The ponente contends that there is an imperative to grant the Urgent Motion to Recall Entry of Judgment filed on October 29, 2010 by movants-intervenors for the simple reason that the Entry of Judgment was prematurely issued on October 5, 2010 in view of the pendency of the movants-intervenor's motion for reconsideration of the July 20, 2010 Resolution, which was filed on September 7, 2010. I cannot agree with such contention. Although Entry of Judgment was made on October 5, 2010, it must be borne in mind that the Decision in this case became final and executory on May 18, 2010, as evidenced by the Entry of Judgment 26 issued by the Clerk of Court. If the Court follows Section 2, Rule 36 of the Rules of Court, the date of finality of the judgment is deemed to be the date of its entry, thus: Sec. 2. Entry of judgments and final orders. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment of final order has become final and executory. The amendment in Section 2 above makes finality and entry simultaneous by operation of law, and eliminates the confusion and guesswork whenever the parties could not have access, for one reason or another, to the Book of Entries of Judgments. 27 It also avoids the usual problem where the physical act of writing out the entry is delayed by neglect or sloth. 28 In addition, the Court properly denied on July 20, 2010 the movants-intervenors' Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010, since it was filed after the resolution of the case and after the Decision in this case had become final and executory on May 18, 2010. With the denial of the Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010, the movants-intervenors' did not have legal standing to intervene; hence, their motion for reconsideration of the July 20, 2010 Resolution has no bearing on the validity of the Entry of Judgment that was recorded in the Book of Entries of Judgments on October 5, 2010. Therefore, the Entry of Judgment cannot be recalled on the ground of pendency of the movants-intervenor's motion for reconsideration of the July 20, 2010 Resolution. DIcTEC Since movants-intervenors' Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010 was denied in the Resolution dated July 20, 2010, the motion for reconsideration of the July 20, 2010 Resolution filed on September 7, 2010 by movants-intervenors was recommended to also be denied, but has yet to be acted on by the Court.

Further, on October 22, 2010, respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, filed an Urgent Omnibus Motion (To resolve Motion for Leave of Court to Admit Second Motion for Reconsideration and, to set aside Entry of Judgment). Respondent admitted that it filed the Motion for Leave of Court to Admit Second Motion for Reconsideration on May 26, 2010, twelve (12) days after receipt of the Resolution dated May 12, 2010 denying respondents' motion for reconsideration. It should be pointed out that the Court has acted on respondent New Province of Dinagat Islands' Motion for Leave of Court to Admit Second Motion for Reconsideration and the aforesaid Motion for Reconsideration, which were filed on May 26, 2010 (after the Decision had become final and executory on May 18, 2010), in the Court's Resolution dated June 26, 2010. Treated as a second motion for reconsideration of the Decision, which is disallowed, the Court resolved to note without action the said motions in view of the Resolution dated May 12, 2010 denying the motions for reconsideration of the February 10, 2010 Decision. Section 2, Rule 52 of the Rules of Court states: SEC. 2. Second motion for reconsideration. No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. As the decision in this case became final and executory on May 18, 2010, the decision is unalterable. In Gomez v. Correa, 29 the Court held: It is settled that when a final judgment is executory, it becomes immutable and unalterable. The judgment may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest Court of the land. The doctrine is founded on considerations of public policy and sound practice that, at the risk of occasional errors, judgments must become final at some definite point in time. HASTCa The only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries in which case there is no prejudice to any party, and where the judgment is void. To stress, the motion for reconsideration filed by movants-intervenors on the denial of the motion for intervention should have been denied since to grant the same would be tantamount to reopening a case which is already final. Worse, movantsintervenors are not even original parties to the present case and therefore are not in a position to file a motion to recall a judgment which is already final and executory. In view of the foregoing, I maintain that the movants-intervenors' Motion for Leave to Intervene and to File and to Admit Intervenors' Motion for Reconsideration of the Resolution dated May 12, 2010, which was filed only on June 18, 2010 or after

resolution of the case and after the Decision of February 10, 2010 had become final and executory on May 18, 2010, was properly denied in the Resolution dated July 20, 2010. Consequently, I maintain my stand that movants-intervenor's Motion for Reconsideration of the Resolution dated July 20, 2010, which motion was filed on September 7, 2010, be denied for lack of merit. Further, it is recommended that movants-intervenors' Urgent Motion to Recall Entry of Judgment filed on October 29, 2010, and the Omnibus Motion (To resolve Motion for Leave of Court to Admit Second Motion for Reconsideration and to set aside Entry of Judgment) filed on October 22, 2010 by respondent New Province of Dinagat Islands, represented by Governor Geraldine Ecleo-Villaroman, be likewise denied for lack of merit. DEL CASTILLO, J., concurring: Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. SaCIDT Justice Oliver Wendell Holmes Northern Securities Co. v. United States 1 On the abstract principles which govern courts in construing legislative acts, no difference of opinion can exist. It is only in the application of those principles that the difference discovers itself. Chief Justice John Marshall United States v. Fisher 2 Considering the circumstances which supervened after the promulgation of the Decision on February 10, 2010 and Resolution dated May 12, 2010, I find myself reconsidering my previous position. Mr. Justice Antonio Eduardo B. Nachura has himself identified factors not previously considered by this Court, which, in my view, warrant a reversal of our previous rulings. The case before us concerns the proper interpretation of Section 461 of Republic Act (RA) No. 7160, also known as the Local Government Code (LGC), which prescribes the criteria for the creation of a province as follows: SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. IECcAT (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. 3 (Underscoring supplied) To implement the provisions of the LGC, the Oversight Committee (created pursuant to Sec. 533 of the LGC) formulated the Implementing Rules and Regulations to carry out the provisions of the law. Article 9 of said Rules and Regulations provides: Art. 9. Provinces. (a) Requisites for Creation. A province shall not be created unless the following requisites on income and either population or land area are present: (i) Income An average annual income of not less than Twenty million pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by the DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and non-recurring income; and (ii) Population or land area Population shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds. Since our May 12, 2010 ruling (which denied respondents' respective Motions for Reconsideration), the Office of the Solicitor General (representing the Republic of the Philippines) and Gov. Geraldine Ecleo-Villaroman (representing the new Province of the Dinagat Islands), each sought leave to file a Second Motion for Reconsideration on May 27, 2010 and May 26, 2010, respectively, which motions were noted without action. The winning candidates for provincial and congressional seats in Surigao del

Norte also sought to intervene in this case; however, their motion for intervention was denied on July 20, 2010. CSDAIa Subsequent to the Motions for Reconsideration, Justice Nachura has taken pains to compare the requisites for the creation of the different local government units (LGUs) in order to highlight what, in my view, is a glaring inconsistency in the provisions of the law. To summarize: LGU Barangay Land Area Requirement No minimum land area requirement. Rather, the barangay must

be created out of a contiguous territory with a population of at least two thousand (2,000) inhabitants [Sec. 386 (a), LGC] The territory need not be contiguous if it comprises two (2) or more islands. [Sec. 386 (b), LGC] Municipality Contiguous territory of at least fifty (50) square kilometers Note the land area requirement is IN ADDITION to the income requirement of at least Two Million Five Hundred Thousand Pesos (PhP2,500,000.00) in average annual income for the last 2 consecutive years AND the population requirement of at least Twenty Five Thousand (25,000) inhabitants. [Sec. 442(a), LGC] The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. [Sec. 442(b), LGC] City Contiguous territory of at least one hundred (100) square kilometers Note a city must have an average annual income of at least Twenty Million Pesos (PhP20,000,000.00) for the last 2 consecutive years AND comply with either the land area requirement OR have a population of at least one hundred fifty

thousand (150,000) inhabitants. [Sec. 450 (a), LGC] The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. [Sec 450 (b), LGC] Province Contiguous territory of at least two thousand (2,000) square

kilometers. Note a province must have an average annual income of at least Twenty Million Pesos (PhP20,000,000.00) AND comply with either the land area requirement OR have a population of at least two hundred fifty thousand (250,000) inhabitants. [Sec. 461 (a), LGC] jurcda

The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. [Sec. 461 (b), LGC] As Justice Nachura points out, as regards the creation of barangays, land area is not included as a requirement. However, a minimum land area is provided for the creation of municipalities, cities, and provinces. Furthermore, while an exemption 4 is provided for municipalities and cities in cases where the LGU concerned is composed of one or more islands, in stark contrast, no such exemption exists with respect to provinces. It is not difficult to see why no exemption is needed for barangays why exempt them from a requirement that does not even apply to them? In fact, the inclusion of the clause "[t]he territory need not be contiguous if it comprises two (2) or more islands" in Sec. 386 (b) of the LGC appears to be surplusage. But I cannot see why there would be a difference in treatment between cities and municipalities, on one hand, and provinces, on the other. In fact, as Justice Nachura points out, this may lead to anomalous results. This leads me to conclude that Justice Nachura's interpretation is indeed correct that the legislature fully intended to exempt LGUs from the land area requirement in cases where the LGU concerned encompassed two or more islands, as provided in Section 442 (for municipalities) and Section 450 (for

cities), but this legislative policy was not carried over to Section 461 (for provinces). Consequently, Article 9 (2) of the LGC's Implementing Rules and Regulations were precisely enacted in order to correct the congressional oversight. Our esteemed colleague, Mr. Justice Diosdado M. Peralta, suggests that this interpretation is implausible because even if there were any such oversight, Congress had every opportunity in the last 19 years to correct its mistake. To this I would only observe that Congress has never, in the last 19 years, been faced with a situation where an amendment to Section 461 of the LGC was necessary or desirable, and no case concerning the land area requirement for provinces has ever been brought before this Court since the LGC's enactment. 5 The only case that has mentioned the land area requirement for provinces, Tan v. Commission on Elections, 6 (regarding the invalidation of Batas Pambansa Bilang 885 which created the province of Negros Del Norte) dealt with the matter only tangentially, at best. 7 TcDaSI Justice Peralta also opines that there is no need to search for the legislative intent, since the language of the law is plain, clear, and unambiguous. I would submit, however, that it is equally true that the statute must be read as a whole, that its clauses and phrases are not detached and isolated expressions, but that each and every part must be considered in order to ascertain its meaning. 8 Therefore, the statute, read as a whole, in the light of its legislative history, cannot be said to preclude the interpretation placed on it by the majority. But in interpreting a statute [such as the Local Government Code], we cannot take one sentence, one section, or even the entire statute alone and say that it has a "plain meaning" as if there were an objective formula in the few words simply waiting to be grasped by the courts. Instead the statute must be read as a whole, taking all of its provisions and reading them in the context of the legal fabric to which they are to be applied. An interpretation that creates an admittedly anomalous result is not salved by the majority's apologia that, if we read the statute in that fashion, Congress created the anomaly. Instead the question is whether the statute read as a whole was intended by Congress to create such results. The law is not an isolated bundle of capricious and inconsistent commands by a legislature presumed to react mindlessly. 9 It is also relevant that the Senate and the House of Representatives, represented by the Office of the Solicitor General, have asserted that Congress intended that provinces composed of one or more islands should be exempted from the 2,000 sq. km. land area requirement. Surely, the legislature's will in this case should be given deference, as a co-equal branch of government operating within its area of constitutional authority. I also cannot help but note that the Dinagat Islands is not the first small islandprovince which has been separated from a larger province through legislative imprimatur. The Court may take judicial notice of the fact that the island-provinces of Batanes (previously annexed to Cagayan), 10 Camiguin (previously a sub-province of

Misamis Oriental), 11 Siquijor (previously a sub-province of Negros Oriental), 12 Biliran (previously a sub-province of Leyte), 13 Guimaras (previously a sub-province of Iloilo), 14 and Marinduque (previously annexed to Tayabas) 15 also have land areas of well below 1,000 square kilometers each. HaTAEc To be clear, I am not making an equal protection argument, since none of these provinces were created under the auspices of the LGC. I only point this out to show that Congress, in drafting the LGC, was cognizant of the special circumstances surrounding the creation of island-provinces, and evidently intended that economic development be a more significant consideration than size. The Congressional deliberations bear this out: CHAIRMAN LINA: Will you look at the case of how many municipalities are there in Batanes province? CHAIRMAN ALFELOR: Batanes is only six. CHAIRMAN LINA: Six town. Siquijor? CHAIRMAN ALFELOR: Siquijor. It is region? CHAIRMAN LINA: Seven. CHAIRMAN ALFELOR: Seven. Anim. CHAIRMAN LINA: Six also. CHAIRMAN ALFELOR: Six also. CHAIRMAN LINA: It seems with a minimum number of towns? CHAIRMAN ALFELOR: aDHCEA

The population of Siquijor is only 70 thousand, not even one congressional district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon. CHAIRMAN LINA: Camiguin, Camiguin. CHAIRMAN ALFELOR: That is region? Camiguin has five municipalities, with a population of 63 thousand. But we do not hold it against the province because maybe that's one stimulant where growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo eh. Because what is really the thrust of the Local Government Code? Growth. To devolve powers in order for the community to have its own idea how they will stimulate growth in their respective areas. So in every geographical condition, mayroong sariling idiosyncrasies eh. We cannot make a generalization. 16 Though this Court certainly has the authority to override the legislative interpretation, I do not believe it is appropriate or necessary in this instance. Rather, we should acknowledge the "strong presumption that a legislature understands and correctly appreciates the needs of its own people [and] that its laws are directed to problems made manifest by experience." 17 I do not propose that the Court overturn its settled precedent to the effect that Implementing Rules and Regulations cannot go beyond the terms of the statute. But under these limited circumstances where a reading of the entire law reveals inconsistencies which this Court must reconcile, where the legislature has informed the Court of its intentions in drafting the law, and where the legislative history of the LGC leads one to the inescapable conclusion that the primary consideration in the creation of provinces is actually administrative convenience, economic viability, and capacity for development then it would be far more just to give effect to the will of the legislature in this case. cAaDCE In the words of Mr. Justice Isagani Cruz: But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of

that intent, in fact, for we presume the good motives of the legislature, is to render justice. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the law maker's will. The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the letter but although it is not within the letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. 18 EHCcIT For these reasons, I thus concur in the opinion of Justice Nachura. ABAD, J., concurring: I fully concur in the resolution that Justice Antonio Eduardo Nachura wrote for the majority. I would want, however, to reply briefly to the somewhat harsh criticism hurled against the Court in connection with its action. The Court is accused of "flip-flopping" in this case as in the others before it, specifically the case of the sixteen municipalities that Congress converted into cities. Since the Court is a collegial body, the implication is that its members or the majority collectively flip-flopped in their decisions. But, as I said in my concurring opinion in the Court's April 12, 2011 resolution in the League of Cities case, 1 the charge is unfair, as it is baseless. The Court is not a living

person whose decisions and actions are ruled by the whims of one mind. As a collegial body, the Court acts by consensus among its fifteen members. In the League of Cities, 2 neither all the Justices nor most of them did a somersault as implicitly suggested. Congress passed a number of laws converting sixteen municipalities into cities. The League of Cities assailed these laws as unconstitutional on the ground that the sixteen municipalities involved did not meet the P100 million minimum income requirement of the Local Government Code. For their part, the municipalities countered that their laws constituted valid legislative amendments of such requirement. The Court originally voted in the case on November 18, 2008. A majority of six Justices voted to annul the laws, five members dissented, and four took no part (6-54). The lead of those who voted to annul the laws firmed up with an increase of 2 votes when the Court took up the motion for reconsideration of the sixteen municipalities on March 31, 2009. The vote was 7-5-2. But when on April 28, 2009 the Court acted on the sixteen municipalities' second motion for reconsideration, the vote resulted in a tie, 6-6-3. The Court was divided in its interpretation of this 6-6 result. One group argued that the failure of the minority to muster a majority vote had the effect of maintaining the Court's last ruling. Some argued, however, that since the Constitution required a majority vote for declaring laws passed by Congress unconstitutional, the new voting restored the constitutionality of the subject laws. When a re-voting took place on December 21, 2009 to clear up the issue, the result shifted in favor of upholding the constitutionality of the laws of the sixteen municipalities, 6-4-3 (2 vacancies), with the new majority voting to uphold the constitutionality of the laws that converted the sixteen municipalities into cities. IESTcD But when the Court voted on the motion for reconsideration of the losing League of Cities on August 24, 2010, the majority shifted anew on a vote of 7-6-2. The sixteen municipalities filed a motion for reconsideration of the new decision and voting took place on February 15, 2011, resulting in a vote of 7-6-2 in favor of again upholding the constitutionality of the laws of the sixteen municipalities. To repeat what I said in my concurring opinion in the League of Cities, 3 those who say that the Court, acting through its members, flipped-flopped in the League of Cities case should consider the following: One. The Justices did not on each occasion simply decide to change their minds. There were pending motions for reconsideration in the case and the Justices had a duty to vote on them on the dates the matters came up for decision. The Court is no orchestra with its members playing one tune under the baton of a maestro. They bring with them a diversity of views, which is what the Constitution prizes, for it is this diversity that filters out blind or dictated conformity.

Two. Of twenty-three Justices who voted in the case at any of its various stages, twenty stood by their original positions. They never reconsidered their views. Only three did so and not on the same occasion, showing no wholesale change of votes at any time. Three. To flip-flop means to vote for one proposition at first (take a stand), shift to the opposite proposition upon the second vote (flip), and revert to his first position upon the third (flop). Not one of the twenty-three Justices flipped-flopped. Four. The three Justices who changed their votes did not do so in one direction. Justice Velasco changed his vote from a vote to annul to a vote to uphold; Justice Villarama from a vote to uphold to a vote to annul; and Justice Mendoza from a vote to annul to a vote to uphold. None of them flipped-flopped since the three never changed their votes afterwards. Notably, no one can dispute the right of a judge, acting on a motion for reconsideration that the losing party files, to change his mind regarding the case. The rules are cognizant of the fact that human judges could err and that it would merely be fair and right for them to correct their perceived errors upon a motion for reconsideration. Even God, who had decided to destroy the Israelites for worshipping a golden calf, reconsidered after Moses stood in the gap for them. 4 AEHCDa Five. Evidently, the voting in the League of Cities is not a case of massive flip-flopping by the Justices of the Court. Rather, it is a case of tiny shifts in the votes, occasioned by the consistently slender margin that one view held over the other. This reflected the nearly even soundness of the opposing advocacies of the contending sides. Six. It did not help that in one year alone in 2009, seven Justices retired and were replaced by an equal number. It is such that the resulting change in the combinations of minds produced multiple shifts in the outcomes of the voting. No law or rule requires succeeding Justices to adopt the views of their predecessors. Indeed, preordained conformity is anathema to a democratic system. In this Dinagat Islands case the vote changed when, acting on the intervention of a third party with genuine interest in the outcome of the case, the majority in the Court was persuaded to change its mind and uphold the act of Congress in creating the province. The previous voting was too close and it took the vote of just two Justices, changing their previous positions, to ensnare the victory from those who oppose the conversion of the Dinagat Islands into a province. Neither the Court nor its Justices flip-flopped in this case. They did not take one position, later moved to the opposite position, and then reverted to the first. They merely exercised their right to reconsider an erroneous ruling. The charge of flip-flopping is unfair. Footnotes

1. Congressman Francisco T. Matugas (incumbent Congressman of the First Legislative District of Surigao del Norte), Hon. Sol T. Matugas, Hon. Arturo Carlos A. Egay, Jr. (incumbent Governor and Vice Governor, respectively, of the Province of Surigao del Norte), Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol (incumbent Board Members of the First Provincial District of Surigao del Norte). 2. Passed by the House of Representatives and the Senate on August 28, 2006 and August 14, 2006, respectively. 3. R.A. No. 7160, Sec. 10.

SECTION. 10. Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. 4. 5. 6. Rollo, pp. 124-127. Id. at 143. Rollo (G.R. No. 175158), pp. 3-20.

7. Per the November 28, 2006 Resolution, the Court dismissed the petition due to its defective or insufficient verification and certification of non-forum shopping and the failure of petitioners' counsel to indicate an updated Integrated Bar of the Philippines official receipt. In its February 13, 2007 Resolution, the Court dismissed the petition with finality. On April 11, 2007, an Entry of Judgment was issued. (Id. at 77A and 112.) 8. 9. Rollo, pp. 3-43. Id. at 736-765.

10. Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno (now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio Morales, Arturo D. Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Portugal Perez, and Jose Catral Mendoza, concurring. 11. Dissented to by Associate Justice Antonio Eduardo B. Nachura, joined by Associate Justices Renato C. Corona (now Chief Justice), Presbitero J. Velasco, Jr., Teresita J. Leonardo-de Castro, Lucas P. Bersamin, and Roberto A. Abad. 12. Penned by Associate Justice Diosdado M. Peralta, with Chief Justice Reynato S. Puno (now retired) and Associate Justices Antonio T. Carpio, Conchita Carpio Morales,

Arturo D. Brion, Mariano C. Del Castillo, Martin S. Villarama, Jr., and Jose Catral Mendoza, concurring. 13. Dissented to by Associate Justice Jose Portugal Perez, joined by Associate Justices Renato C. Corona (now Chief Justice), Antonio Eduardo B. Nachura, Teresita J. Leonardo-de Castro, Lucas P. Bersamin, and Roberto A. Abad. 14. 15. 16. Rollo, pp. 984-997. Id. at 1153-1154. Id. at 1155-1158.

17. Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385; Office of the Ombudsman v. Miedes, Sr., G.R. No. 176409, February 27, 2008, 547 SCRA 148; Pinlac v. Court of Appeals, 457 Phil. 527 (2003); Mago v. Court of Appeals, 363 Phil. 225 (1999); Lim v. Pacquing, G.R. No. 115044, January 27, 1995, 240 SCRA 649; Tahanan Development Corporation v. Court of Appeals, 203 Phil. 652 (1982); and Director of Lands v. Court of Appeals, 181 Phil. 432 (1979). 18. Sec. 3. Second Motion for Reconsideration. The Court shall not entertain a second motion for reconsideration and any exception to this rule can only be granted in the higher interest of just by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court's declaration. 19. The Province of North Cotabato v. Republic, G.R. No. 183591, October 14, 2008, 568 SCRA 402, citing Firestone Ceramics, Inc. v. Court of Appeals, 372 Phil. 401 (1999) and Vicente V. Mendoza, JUDICIAL REVIEW OF CONSTITUTIONAL QUESTIONS 137 (2004). 20. 21. David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160. Id. at 223.

22. See Tan Tiac Chiong v. Hon. Rodrigo Cosico, 434 Phil. 753 (2002); People v. Hon. Chavez, 411 Phil. 482 (2001). 23. Id.

24. Manotok IV v. Heirs of Homer L. Barque, G.R. Nos. 162335 & 162605, December 18, 2008, 574 SCRA 468, 492.

25. Bicameral Conference Committee Meeting of the Committee on Local Government, May 22, 1991, 4th Regular Session, pp. 57-67. 26. ARTICLE 3. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as selfreliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units (LGUs) shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the LGUs. 27. Prescribing the Implementing Rules and Regulations of the Local Government Code of 1991. 28. Congressman Chiongbian is one of the sponsors of House Bill No. 34061, the House of Representatives version of the proposed Local Government Code. 29. Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp. 18-28. 30. Section 284. Allotment of Internal Revenue Taxes. Local government units shall have a share in the national internal revenue taxes based on the collection of the third fiscal year preceding the current fiscal year as follows: (a) On the first year of the effectivity of this Code, thirty percent (30%); (b) On the second year, thirty-five percent (35%); and (c) On the third year and thereafter, forty percent (40%): Provided, That in the event that the National Government incurs an unmanageable public sector deficit, the President of the Philippines is hereby authorized, upon the recommendation of the Secretary of Finance, Secretary of Interior and Local Government, and Secretary of Budget and Management, and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the "liga", to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year: Provided, further, That in the first year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personal services.

Section 285. Allocation to Local Government Units. The share of local government units in the internal revenue allotment shall be allocated in the following manner: (a) Provinces Twenty-three percent (23%); (b) Cities Twenty-three percent (23%); (c) Municipalities Thirty-four percent (34%); and (d) Barangays Twenty percent (20%): Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the following formula: (a) Population Fifty percent (50%); (b) Land Area Twenty-five percent (25%) and (c) Equal Sharing Twenty-five percent (25%): Provided, further, That the share of each barangay with a population of not less than one hundred (100) inhabitants shall not be less than Eighty thousand pesos (P80,000.00) per annum chargeable against the twenty percent (20%) share of the barangay from the internal revenue allotment, and the balance to be allocated on the basis of the following formula: (a) On the first year of the effectivity of this Code: (1) Population Forty percent (40%); and (2) Equal Sharing Sixty percent (60%) (b) On the second year: (1) Population Fifty percent (50%); and (2) Equal Sharing Fifty percent (50%) (c) On the third year and thereafter: (1) Population Sixty percent (60%); and (2) Equal Sharing Forty percent (40%): Provided, finally, That the financial requirements of barangays created by local government units after the effectivity of this Code shall be the responsibility of the local government unit concerned.

31. Commissioner of Internal Revenue v. Solidbank Corp., 462 Phil. 96, 129-131, 416 SCRA 436 (2003); Republic v. Court of Appeals, 359 Phil. 530, 559; 299 SCRA 199 (1998). 32. Sec. 533. Formulation of Implementing Rules and Regulations. (a) Within one (1) month after the approval of this Code, the President shall convene the Oversight Committee as herein provided for. The said Committee shall formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring compliance with the principles of local autonomy as defined under the Constitution. (b) The Committee shall be composed of the following: (1) The Executive Secretary, who shall be the Chairman; (2) Three (3) members of the Senate to be appointed by the President of the Senate, to include the Chairman of the Committee on Local Government; (3) Three (3) members of the House of Representatives to be appointed by the Speaker, to include the Chairman of the Committee on Local Government; (4) The Cabinet, represented by the following: (i) Secretary of the Interior and Local Government; (ii) Secretary of Finance; (iii) Secretary of Budget and Management; and (5) One (1) representative from each of the following; (i) The League of Provinces; (ii) The League of Cities; (iii) The League of Municipalities; and (iv) The Liga ng mga Barangay. (c) The Committee shall submit its report and recommendation to the President within two (2) months after its organization. If the President fails to act within thirty (30) days from receipt thereof, the recommendation of the Oversight Committee shall be deemed approved. Thereafter, the Committee shall supervise the transfer of such powers and functions mandated under this Code to the local government units, together with the corresponding personnel, properties, assets and liabilities of the offices or agencies concerned, with the least possible disruptions to existing programs and projects. The Committee shall likewise recommend the corresponding appropriations necessary to effect the said transfer.

For this purpose, the services of a technical staff shall be enlisted from among the qualified employees of Congress, the government offices, and the leagues constituting the Committee. (d) The funding requirements and the secretariat of the Committee shall be provided by the Office of the Executive Secretary. (e) The sum of Five million pesos (P5,000,000.00), which shall be charged against the Contingent Fund, is hereby allotted to the Committee to fund the undertaking of an information campaign on this Code. The Committee shall formulate the guidelines governing the conduct of said campaign, and shall determine the national agencies or offices to be involved for this purpose. (Emphasis supplied.) 33. As found in the Whereas clauses of Administrative Order No. 270 prescribing the Implementing Rules and Regulations of the Local Government Code of 1991, viz.: WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors of society and consideration of the operative principles of local autonomy as provided in the Local Government Code of 1991, has completed the formulation of the implementing rules and regulations. (Emphasis supplied.) 34. Galarosa v. Valencia, G.R. No. 109455, November 11, 1993, 227 SCRA 728.

35. G.R. Nos. 176951, 177499, and 178056, December 21, 2009, 608 SCRA 636, 644-645. CARPIO, J., dissenting: 1. Article 9, paragraph 2 ("[T]he land area requirement shall not apply where the proposed province is composed of one or more islands. . . .") 2. G.R. No. 157013, 10 July 2003.

3. Section 442 (b) ("The territorial jurisdiction of a newly-created municipality shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. . . .") (emphasis supplied). 4. Section 450 (b) ("The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the municipality proposed to be created is composed of one (1) or more islands. . . .") (emphasis supplied). 5. Which, under Section 442, must have minimum income, population and land area of P2.5 million (based on 1991 prices), 25,000 and 50 square kilometers (contiguous), respectively.

6. Section 5 (3), Article VI of the 1987 Constitution provides: "Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." (Emphasis supplied) 7. 8. 9. 10. G.R. Nos. 177597 & 178628, 16 July 2008. Id. Id. G.R. No. 189793, 617 SCRA 623 (2010).

11. Much like in the creation of legislative districts, the creation of local government units is done at the behest of legislators representing the relevant locality. 12. Section 26, Article II (emphasis supplied).

13. Paradigmatically shown in Aquino v. Commission on Elections, G.R. No. 189793, 617 SCRA 623 (2010). 14. Section 285.

15. In Tan v. Commission on Elections (No. L-73155, 11 July 1986, 142 SCRA 727), we rejected as baseless the claim that "territory" for purposes of the creation of a province, includes submerged land: "The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control." (Id. at 749; emphasis supplied). 16. Others island provinces would be Cebu, Bohol, Masbate, Catanduanes, Batanes, Basilan, Siquijor, and Camiguin. BRION, J., dissenting: 1. A.M. No. 10-4-20-SC, The Internal Rules of the Supreme Court, effective May 22, 2010. 2. G.R. Nos. 176951, 177499 & 178056, February 15, 2011.

3. Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, citing Coca-Cola Bottlers Philippines, Inc., Sales Force Union-PTGWO-BALAIS v. Coca-Cola Bottlers, Philippines, Inc., G.R. No. 155651, July 28, 2005, 464 SCRA 507, 513-514; Apo Fruits Corp. v. CA, G.R. No. 164195, December 4, 2009, citing Siy v. National Labor Relations Commission, G.R. No. 158971, August 25, 2005, 468 SCRA 154, 161-162, Kline v. Murray, 257 P. 465, 79 Mont. 530, Flores v. Court of Appeals, G.R. Nos. 97556

& 101152, July 29, 1996, Land Bank of the Philippines v. Arceo, G.R. No. 158270, July 21, 2008, 559 SCRA 85, Temic Semiconductors, Inc. Employees Union (TSIEU)-FFW v. Federation of Free Workers (FFW), G.R. No. 160993, May 20, 2008, 554 SCRA 122, 134; Session Delights Ice and Cream Fast Foods v. CA, G.R. No. 172149, February 8, 2010, citing Equitable Bank Corp. v. Sadac, G.R. No. 164772, June 8, 2006, 490 SCRA 380, 417; and Navarro v. Metropolitan Bank and Trust Company, G.R. No. 165697, August 4, 2009, citing Yau v. Silverio, Sr., G.R. No. 158848, February 4, 2008, 543 SCRA 520, Social Security System v. Isip, G.R. No. 165417, April 4, 2007, 520 SCRA 310, Lim v. Jabalde, G.R. No. 36786, April 17, 1989, 172 SCRA 211 (1983). 4. Section 2, Rule 19 of the 1997 Rules of Civil Procedure reads: Time to intervene. The motion to intervene 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. PERALTA, J., dissenting: 1. Rollo, p. 1202.

2. Based on the results of the May 10, 2010 elections, movant Congressman Francisco T. Matugas is the Congressman-Elect of the First Legislative District of Surigao del Norte; movants Hon. Sol T. Matugas and Hon. Arturo Carlos A. Egay, Jr. are the Governor-Elect and Vice-Governor-Elect, respectively, of the Province of Surigao del Norte; while movants Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M. Longos, and Hon. Cesar M. Bagundol are the Board Members-Elect of the First Provincial District of Surigao del Norte. 3. Entitled IN THE MATTER OF THE EFFECT OF THE DECISION OF THE SUPREME COURT IN THE CASE OF "RODOLFO G. NAVARRO, ET AL. vs. EXECUTIVE SECRETARY EDUARDO ERMITA representing the President of the Philippines, ET AL." (G.R. No. 180050), DECLARING THE CREATION OF THE PROVINCE OF DINAGAT ISLANDS AS UNCONSTITUTIONAL THEREBY REVERTING SAID PROVINCE TO ITS PREVIOUS STATUS AS PART OF THE PROVINCE OF SURIGAO DEL NORTE. 4. Citing Heirs of Geronimo Restrivera v. De Guzman, G.R. No. 146540, July 14, 2004, 434 SCRA 456. 5. 6. 7. 8. G.R. No. 166429, February 1, 2006, 481 SCRA 457. G.R. Nos. 176951, 177499, 178056, December 21, 2009, 608 SCRA 636. G.R. No. 130584, June 27, 2006, 493 SCRA 86, 97. Emphasis supplied.

9. SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than

Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis supplied.) 10. For comparison, Section 461 of the Local Government Code of 1991 and Article 9 of the Rules and Regulations Implementing the Local Government Code of 1991 are reproduced: The Local Government Code SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. Rules and Regulations Implementing the Local Government Code of 1991 ART. 9. Provinces. (a) Requisites for creation A province shall not be created unless the following requisites on income and either population or land area are present: (1) Income An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and (2) Population or land area Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by National Statistics Office; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds. (Emphasis supplied.) 11. Hijo Plantation, Inc. v. Central Bank, G.R. No. L-34526, August 9, 1988, 164 SCRA 192. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. G.R. No. 166006, March 14, 2008, 548 SCRA 485. Emphasis supplied. Tan v. Barrios, G.R. Nos. 85481-82, October 18, 1990, 190 SCRA 686. No. L-28113, March 28, 1969. 308 U.S. 371, 374 (1940). Municipality of Malabang v. Benito, supra note 15, p. 540. Emphasis supplied. No. L-73155, July 11, 1986, 142 SCRA 727, 741-742. G.R. No. 166429, February 1, 2006, 481 SCRA 457. Section 459, The Local Government Code of 1991.

22. SEC. 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income. 23. 24. 25. 26. Emphasis supplied. G.R. No. 109455, November 11, 1993, 227 SCRA 728. Rollo, p. 1202. Id. at 1202.

27. Florenz D. Regalado, Remedial Law Compendium, Vol. I, Eight Revised Edition, 2002, p. 381. 28. 29. Id. G.R. No. 153923, October 2, 2009, 602 SCRA 40, 46-47.

DEL CASTILLO, J., concurring: 1. 2. 193 U.S. 197, 400-411 (1904) (Holmes, J. dissenting). 6 U.S. 358 (1805).

3. Article X, Section 10 of the Constitution also provides that "[n]o province, city, municipality, or barangay may be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."

4. That "[t]he requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands." 5. Since the effectivity of the Local Government Code on January 11, 1992, no issue has been raised concerning the land area requirement of provinces. The following provinces have been successfully created since 1992 Biliran, Guimaras, Saranggani, Kalinga, Apayao, Compostela Valley, and Zamboanga Sibugay, and all of them had land areas of more than 2,000 sq. km. each. Biliran and Guimaras (previously subprovinces of Leyte and Iloilo, respectively) were converted into regular provinces, pursuant to Sec. 462 of the Local Government Code. Sec. 462 provides: SEC. 462. Existing Sub-Provinces. Existing sub-provinces are hereby converted into regular provinces upon approval by a majority of the votes cast in a plebiscite to be held in the said subprovinces and the original provinces directly affected. The plebiscite shall be conducted by the Comelec simultaneously with the national elections following the effectivity of this Code. Saranggani was separated from South Cotabato in accordance with Republic Act No. 7228, An Act Creating the Province of Sarangani (1992). It has a land area of 3,972 sq. km. (http://www.sarangani.gov.ph/seventowns.php). Kalinga-Apayao was separated into the provinces of Kalinga and Apayao by virtue of Republic Act No. 7878, An Act Converting the Sub-Provinces of Kalinga and Apayao into Regular Provinces to be Known as the Province of Kalinga and the Province of Apayao, Amending for the Purpose Republic Act No. 4695 (1995). Kalinga has a land area of 3,164.3 sq. km. (http://www.nscb.gov.ph/rucar/fnf_kalinga.htm) while Apayao has a land area of 4,120 sq. km. (http://www.nscb.gov.ph/rucar/fnf_apayao.htm) Compostela Valley was separated from Davao by virtue of Republic Act No. 8470, An Act Creating the Province of Compostela Valley from the Province of Davao Del Norte, and for Other Purposes (1998), and has a land area of 4,667 sq. km. (http://www.nscb.gov.ph/ru11/prov_profile/comval.htm). Zamboanga Sibugay was separated from Zamboanga del Sur by virtue of Republic Act No. 8973, An Act Creating the Province of Zamboanga Sibugay from the Province of Zamboanga Del Sur and for Other Purposes (2000). It has a land area of 3,362.22 sq. km. (http://www.zamboanga.com/zs/). 6. 226 Phil. 624 (1986).

7. Tan v. Commission on Elections did not directly discuss the requirement of land area under Batas Pambansa Bilang 337, but rather, concerned the proper construction of the "unit or units affected" for a plebiscite. However, the Court did

state that the "territory" in Section 197 of Batas Pambansa Bilang 337 was intended to apply to land area only. 8. Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517, June 22, 2010, citing Land Bank of the Philippines v. AMS Farming Corporation, G.R. No. 174971, October 15, 2008, 569 SCRA 154, 183, Mactan-Cebu International Airport Authority v. Urgello, G.R. No. 162288, April 4, 2007, 520 SCRA 515, 535, and Smart Communications, Inc. v. The City of Davao, G.R. No. 155491, September 16, 2008, 565 SCRA 237, 247-248. 9. United States v. Acres of Land Situated in Grenada and Yalobusha Counties Mississippi Jg [1983] USCA5 583; 704 F.2d 800; 20 ERC 1025 (12 May 1983). 10. ACT NO. 1952, An Act to Provide for the Establishment of the Province of Batanes; to Amend Paragraph Seven of Section Sixty Eight of Act Numbered Eleven Hundred Eighty Nine in Certain Particulars; to Authorize the Approval of the GovernorGeneral to extend the Time for the Payment without Penalty and Taxes and Licenses; to Amend Section Five of Act Numbered Fifteen Hundred and Eighty Two entitled the "Election Law" by Increasing the Number of Delegates to the Philippine Assembly to Eighty One, and for other Purposes (1909). 11. REPUBLIC ACT NO. 4669, An Act Separating the Subprovince of Camiguin from the Province of Misamis Oriental and Establishing it as an Independent Province (1966). 12. REPUBLIC ACT NO. 6398, An Act Separating the Subprovince of Siquijor from the Province of Oriental Negros and Establishing it as an Independent Province (1971). 13. 14. Sec. 462 of the LOCAL GOVERNMENT CODE. Id.

15. ACT NO. 2880, An Act Authorizing the Separation of the Subprovince of Marinduque from the Province of Tayabas and the Reestablishment of the Former Province of Marinduque, and for other Purposes (1920). 16. Bicameral Conference Committee on Local Government (Book III), March 13, 1991, pp. 18-28, in FN 14 of Justice Nachura's Reflections. 17. Enron Corp. v. Spring Independent School District, 922 S.W. 2d 931; Middleton v. Texas Power & Light Co. (1919), 249 U.S. 152, at 157. 18. Alonzo v. Intermediate Appellate Court, 234 Phil. 267, 272-273 (1987).

ABAD, J., concurring:

1. G.R. 176951, League of Cities, et al. vs. Commission on Elections, et al., April 12, 2011. 2. 3. 4. Supra. Supra. Exodus 32:7-14.

EN BANC [G.R. Nos. 179431-32. June 22, 2010.] LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE AGAINST CORRUPTION (CIBAC), petitioner, vs. COMMISSION ON ELECTIONS and the HOUSE OF REPRESENTATIVES, respondents. [G.R. No. 180443. June 22, 2010.] LUIS K. LOKIN, JR., petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J. VILLANUEVA, CINCHONA C. GONZALES and ARMI JANE R. BORJE, respondents. DECISION BERSAMIN, J p: The principal question posed in these consolidated special civil actions for certiorari and mandamus is whether the Commission on Elections (COMELEC) can issue implementing rules and regulations (IRRs) that provide a ground for the substitution of a party-list nominee not written in Republic Act (R.A.) No. 7941, 1 otherwise known as the Party-List System Act, the law that the COMELEC thereby implements. HTSaEC Common Antecedents The Citizens' Battle Against Corruption (CIBAC) was one of the organized groups duly registered under the party-list system of representation that manifested their intent to participate in the May 14, 2007 synchronized national and local elections. Together with its manifestation of intent to participate, 2 CIBAC, through its president, Emmanuel Joel J. Villanueva, submitted a list of five nominees from which its representatives would be chosen should CIBAC obtain the required number of qualifying votes. The nominees, in the order that their names appeared in the certificate of nomination dated March 29, 2007, 3 were: (1) Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees' certificates of acceptance were attached to the certificate of nomination filed by CIBAC. The list of nominees was later published in two newspapers of general circulation, The Philippine Star News 4 (sic) and The Philippine Daily Inquirer. 5 cHSIAC

Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of nomination, substitution and amendment of the list of nominees dated May 7, 2007, 6 whereby it withdrew the nominations of Lokin, Tugna and Galang and substituted Armi Jane R. Borje as one of the nominees. The amended list of nominees of CIBAC thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje. acEHCD Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to COMELEC Chairperson Benjamin Abalos, 7 transmitting therewith the signed petitions of more than 81% of the CIBAC members, in order to confirm the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution of Borje. In their petitions, the members of CIBAC averred that Lokin and Tugna were not among the nominees presented and proclaimed by CIBAC in its proclamation rally held in May 2007; and that Galang had signified his desire to focus on his family life. cDCaTH On June 26, 2007, CIBAC, supposedly through its counsel, filed with the COMELEC en banc sitting as the National Board of Canvassers a motion seeking the proclamation of Lokin as its second nominee. 8 The right of CIBAC to a second seat as well as the right of Lokin to be thus proclaimed were purportedly based on Party-List Canvass Report No. 26, which showed CIBAC to have garnered a grand total of 744,674 votes. Using all relevant formulas, the motion asserted that CIBAC was clearly entitled to a second seat and Lokin to a proclamation. aTcIEH The motion was opposed by Villanueva and Cruz-Gonzales. Notwithstanding Villanueva's filing of the certificate of nomination, substitution and amendment of the list of nominees and the petitions of more than 81% of CIBAC members, the COMELEC failed to act on the matter, prompting Villanueva to file a petition to confirm the certificate of nomination, substitution and amendment of the list of nominees of CIBAC on June 28, 2007. 9 DECSIT On July 6, 2007, the COMELEC issued Resolution No. 8219, 10 whereby it resolved to set the matter pertaining to the validity of the withdrawal of the nominations of Lokin, Tugna and Galang and the substitution of Borje for proper disposition and hearing. The case was docketed as E.M. No. 07-054. CaTSEA In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers, issued National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007 11 to partially proclaim the following parties, organizations and coalitions participating under the Party-List System as having won in the May 14, 2007 elections, namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party, Association of Philippine Electric Cooperatives, Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc., Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to defer the proclamation of the nominees of the parties, organizations and coalitions with pending disputes until final resolution of their respective cases. SHCaEA

The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated July 18, 2007, 12 proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats and Bayan Muna, CIBAC, Gabriela Women's Party, and Association of Philippine Electric Cooperatives to an additional seat each; and holding in abeyance the proclamation of the nominees of said parties, organizations and coalitions with pending disputes until the final resolution of their respective cases. DCASEc With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de los Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno, Secretary General of the House of Representatives, of the promulgation of NBC Resolution No. 07-72 and requested that Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to enable him to assume office. Nazareno replied, however, that the request of Delos Santos could not be granted because COMELEC Law Director Alioden D. Dalaig had notified him of the pendency of E.M. 07-054. On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-054 13 thuswise: acHDTA WHEREFORE, considering the above discussion, the Commission hereby approves the withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil Galang as second, third and fourth nominees respectively and the substitution thereby with Atty. Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje as third nominee for the party list CIBAC. The new order of CIBAC's nominees therefore shall be: TDcAIH 1. 2. 3. Emmanuel Joel J. Villanueva Cinchona C. Cruz-Gonzales Armi Jane R. Borje SECATH

SO ORDERED.

The COMELEC en banc explained that the actions of Villanueva in his capacity as the president of CIBAC were presumed to be within the scope of his authority as such; that the president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee and direct the corporate activities, which included the act of submitting the party's manifestation of intent to participate in the May 14, 2007 elections as well as its certificate of nominees; that from all indications, Villanueva as the president of CIBAC had always been provided the leeway to act as the party's representative and that his actions had always been considered as valid; that the act of withdrawal, although done without any written Board approval, was accomplished with the Board's acquiescence or at least understanding; and that the intent of the party should be given paramount consideration in the selection of the nominees. cSTDIC

As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second nominee of CIBAC. 14 Cruz-Gonzales took her oath of office as a Party-List Representative of CIBAC on September 17, 2007. 15 ESaITA Precs of the Consolidated Cases In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel respondent COMELEC to proclaim him as the official second nominee of CIBAC. SEHDIC In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on January 12, 2007; 16 and the resolution dated September 14, 2007 issued in E.M. No. 07-054 (approving CIBAC's withdrawal of the nominations of Lokin, Tugna and Galang as CIBAC's second, third and fourth nominees, respectively, and the substitution by Cruz-Gonzales and Borje in their stead, based on the right of CIBAC to change its nominees under Section 13 of Resolution No. 7804). 17 He alleges that Section 13 of Resolution No. 7804 expanded Section 8 of R.A. No. 7941. 18 the law that the COMELEC seeks to thereby implement. ACaTIc In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate recourse in law due to the proclamation of Cruz-Gonzales as Representative and her assumption of that office; that Lokin's proper recourse was an electoral protest filed in the House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court has no jurisdiction over the matter being raised by Lokin. IcaHCS For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition for mandamus and a petition for certiorari, considering that both petitions ultimately seek to have him proclaimed as the second nominee of CIBAC. CIHTac Issues The issues are the following: (a) (b) Whether or not the Court has jurisdiction over the controversy; Whether or not Lokin is guilty of forum shopping; TDAcCa

(c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and violates the Party-List System Act; and (d) Whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in approving the withdrawal of the nominees of CIBAC and allowing the amendment of the list of nominees of CIBAC without any basis in fact or law and after the close of the polls, and in ruling on matters that were intracorporate in nature. SEIacA Ruling

The petitions are granted. A The Court has jurisdiction over the case The COMELEC posits that once the proclamation of the winning party-list organization has been done and its nominee has assumed office, any question relating to the election, returns and qualifications of the candidates to the House of Representatives falls under the jurisdiction of the HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus, Lokin should raise the question he poses herein either in an election protest or in a special civil action for quo warranto in the HRET, not in a special civil action for certiorari in this Court. ICTHDE We do not agree. An election protest proposes to oust the winning candidate from office. It is strictly a contest between the defeated and the winning candidates, based on the grounds of electoral frauds and irregularities, to determine who between them has actually obtained the majority of the legal votes cast and is entitled to hold the office. It can only be filed by a candidate who has duly filed a certificate of candidacy and has been voted for in the preceding elections. ScCDET A special civil action for quo warranto refers to questions of disloyalty to the State, or of ineligibility of the winning candidate. The objective of the action is to unseat the ineligible person from the office, but not to install the petitioner in his place. Any voter may initiate the action, which is, strictly speaking, not a contest where the parties strive for supremacy because the petitioner will not be seated even if the respondent may be unseated. IcEACH The controversy involving Lokin is neither an election protest nor an action for quo warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated as the second nominee of CIBAC. Although an election protest may properly be available to one party-list organization seeking to unseat another party-list organization to determine which between the defeated and the winning party-list organizations actually obtained the majority of the legal votes, Lokin's case is not one in which a nominee of a particular party-list organization thereby wants to unseat another nominee of the same party-list organization. Neither does an action for quo warranto lie, considering that the case does not involve the ineligibility and disloyalty of Cruz-Gonzales to the Republic of the Philippines, or some other cause of disqualification for her. EATcHD Lokin has correctly brought this special civil action for certiorari against the COMELEC to seek the review of the September 14, 2007 resolution of the COMELEC in accordance with Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption of office by Cruz-Gonzales. The constitutional mandate is

now implemented by Rule 64 of the 1997 Rules of Civil Procedure, which provides for the review of the judgments, final orders or resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the mode of review is by a petition for certiorari in accordance with Rule 65 to be filed in the Supreme Court within a limited period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over Lokin's petitions for certiorari and for mandamus against the COMELEC. SIcEHD B Petitioner is not guilty of forum shopping Forum shopping consists of the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; or (b) if, after having filed a petition in the Supreme Court, a party files another petition in the Court of Appeals, because he thereby deliberately splits appeals "in the hope that even as one case in which a particular remedy is sought is dismissed, another case (offering a similar remedy) would still be open"; or (c) where a party attempts to obtain a writ of preliminary injunction from a court after failing to obtain the writ from another court. 19 TEAcCD What is truly important to consider in determining whether forum shopping exists or not is the vexation caused to the courts and the litigants by a party who accesses different courts and administrative agencies to rule on the same or related causes or to grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issue. 20 The filing of identical petitions in different courts is prohibited, because such act constitutes forum shopping, a malpractice that is proscribed and condemned as trifling with the courts and as abusing their processes. Forum shopping is an improper conduct that degrades the administration of justice. 21 TIDHCc Nonetheless, the mere filing of several cases based on the same incident does not necessarily constitute forum shopping. The test is whether the several actions filed involve the same transactions and the same essential facts and circumstances. 22 The actions must also raise identical causes of action, subject matter, and issues. 23 Elsewise stated, forum shopping exists where the elements of litis pendentia are present, or where a final judgment in one case will amount to res judicata in the other. 24 Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him as the second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72 (announcing CIBAC's entitlement to an additional seat in the House of Representatives), and to strike down the provision in NBC Resolution No. 07-60 and

NBC Resolution No. 07-72 holding in abeyance "all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases." He has insisted that the COMELEC had the ministerial duty to proclaim him due to his being CIBAC's second nominee; and that the COMELEC had no authority to exercise discretion and to suspend or defer the proclamation of winning party-list organizations with pending disputes. acCITS On the other hand, Lokin has resorted to the petition for certiorari to assail the September 14, 2007 resolution of the COMELEC (approving the withdrawal of the nomination of Lokin, Tugna and Galang and the substitution by Cruz-Gonzales as the second nominee and Borje as the third nominee); and to challenge the validity of Section 13 of Resolution No. 7804, the COMELEC's basis for allowing CIBAC's withdrawal of Lokin's nomination. Applying the test for forum shopping, the consecutive filing of the action for certiorari and the action for mandamus did not violate the rule against forum shopping even if the actions involved the same parties, because they were based on different causes of action and the reliefs they sought were different. TEHDIA C Invalidity of Section 13 of Resolution No. 7804 The legislative power of the Government is vested exclusively in the Legislature in accordance with the doctrine of separation of powers. As a general rule, the Legislature cannot surrender or abdicate its legislative power, for doing so will be unconstitutional. Although the power to make laws cannot be delegated by the Legislature to any other authority, a power that is not legislative in character may be delegated. 25 Under certain circumstances, the Legislature can delegate to executive officers and administrative boards the authority to adopt and promulgate IRRs. To render such delegation lawful, the Legislature must declare the policy of the law and fix the legal principles that are to control in given cases. The Legislature should set a definite or primary standard to guide those empowered to execute the law. For as long as the policy is laid down and a proper standard is established by statute, there can be no unconstitutional delegation of legislative power when the Legislature leaves to selected instrumentalities the duty of making subordinate rules within the prescribed limits, although there is conferred upon the executive officer or administrative board a large measure of discretion. There is a distinction between the delegation of power to make a law and the conferment of an authority or a discretion to be exercised under and in pursuance of the law, for the power to make laws necessarily involves a discretion as to what it shall be. 26 SAcCIH

The authority to make IRRs in order to carry out an express legislative purpose, or to effect the operation and enforcement of a law is not a power exclusively legislative in character, but is rather administrative in nature. The rules and regulations adopted and promulgated must not, however, subvert or be contrary to existing statutes. The function of promulgating IRRs may be legitimately exercised only for the purpose of carrying out the provisions of a law. The power of administrative agencies is confined to implementing the law or putting it into effect. Corollary to this is that administrative regulation cannot extend the law and amend a legislative enactment. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Indeed, administrative or executive acts shall be valid only when they are not contrary to the laws or the Constitution. 27 To be valid, therefore, the administrative IRRs must comply with the following requisites to be valid: 28 1. 2. 3. 4. Its promulgation must be authorized by the Legislature; CHEIcS

It must be within the scope of the authority given by the Legislature; It must be promulgated in accordance with the prescribed procedure; and It must be reasonable.

The COMELEC is constitutionally mandated to enforce and administer all laws and regulations relative to the conduct of an election, a plebiscite, an initiative, a referendum, and a recall. 29 In addition to the powers and functions conferred upon it by the Constitution, the COMELEC is also charged to promulgate IRRs implementing the provisions of the Omnibus Election Code or other laws that the COMELEC enforces and administers. 30 The COMELEC issued Resolution No. 7804 pursuant to its powers under the Constitution, Batas Pambansa Blg. 881, and the Party-List System Act. 31 Hence, the COMELEC met the first requisite. HIaTDS The COMELEC also met the third requisite. There is no question that Resolution No. 7804 underwent the procedural necessities of publication and dissemination in accordance with the procedure prescribed in the resolution itself. Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the basis of whether the second and fourth requisites were met. It is in this respect that the challenge of Lokin against Section 13 succeeds. As earlier said, the delegated authority must be properly exercised. This simply means that the resulting IRRs must not be ultra vires as to be issued beyond the limits of the authority conferred. It is basic that an administrative agency cannot amend an act of Congress, 32 for administrative IRRs are solely intended to carry out,

not to supplant or to modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or restrict the provisions of the law it administers and enforces, and cannot engraft additional non-contradictory requirements not contemplated by the Legislature. 33 HScaCT Section 8 of R.A. No. 7941 reads: Section 8. Nomination of Party-List Representatives. Each registered party, organization or coalition shall submit to the COMELEC not later that forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate of any elective office or a person who has lost his bid for an elective office in the immediately preceding election. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. AEDcIH The provision is daylight clear. The Legislature thereby deprived the party-list organization of the right to change its nominees or to alter the order of nominees once the list is submitted to the COMELEC, except when: (a) the nominee dies; (b) the nominee withdraws in writing his nomination; or (c) the nominee becomes incapacitated. The provision must be read literally because its language is plain and free from ambiguity, and expresses a single, definite, and sensible meaning. Such meaning is conclusively presumed to be the meaning that the Legislature has intended to convey. Even where the courts should be convinced that the Legislature really intended some other meaning, and even where the literal interpretation should defeat the very purposes of the enactment, the explicit declaration of the Legislature is still the law, from which the courts must not depart. 34 When the law speaks in clear and categorical language, there is no reason for interpretation or construction, but only for application. 35 Accordingly, an administrative agency tasked to implement a statute may not construe it by expanding its meaning where its provisions are clear and unambiguous. 36 The legislative intent to deprive the party-list organization of the right to change the nominees or to alter the order of the nominees was also expressed during the deliberations of the Congress, viz.: AHcaDC MR. LAGMAN:

And again on Section 5, on the nomination of party list representatives, I do not see any provision here which prohibits or for that matter allows the nominating party to change the nominees or to alter the order of prioritization of names of nominees. Is the implication correct that at any time after submission the names could still be changed or the listing altered? MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished Gentleman from Albay and perhaps a perfecting amendment may be introduced therein. The sponsoring committee will gladly consider the same. MR. LAGMAN: In other words, what I would like to see is that after the list is submitted to the COMELEC officially, no more changes should be made in the names or in the order of listing. aDSTIC MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular nominee has been submitted to the Commission on Elections but before election day the nominee changed his political party affiliation. The nominee is therefore no longer qualified to be included in the party list and the political party has a perfect right to change the name of that nominee who changed his political party affiliation. MR. LAGMAN: Yes of course. In that particular case, the change can be effected but will be the exception rather than the rule. Another exception most probably is the nominee dies, then there has to be a change but any change for that matter should always be at the last part of the list so that the prioritization made by the party will not be adversely affected. 37 ACcHIa The usage of "No" in Section 8 "No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, or becomes incapacitated, in which case the name of the substitute nominee shall be placed last in the list" renders Section 8 a negative law, and is indicative of the legislative intent to make the statute mandatory. Prohibitive or negative words can rarely, if ever, be directory, for there is but one way to obey the command "thou shall not," and that is to completely refrain from doing the forbidden act, 38 subject to certain exceptions stated in the law itself, like in this case. Section 8 does not unduly deprive the party-list organization of its right to choose its nominees, but merely divests it of the right to change its nominees or to alter the order in the list of its nominees' names after submission of the list to the COMELEC.

The prohibition is not arbitrary or capricious; neither is it without reason on the part of lawmakers. The COMELEC can rightly presume from the submission of the list that the list reflects the true will of the party-list organization. The COMELEC will not concern itself with whether or not the list contains the real intended nominees of the party-list organization, but will only determine whether the nominees pass all the requirements prescribed by the law and whether or not the nominees possess all the qualifications and none of the disqualifications. Thereafter, the names of the nominees will be published in newspapers of general circulation. Although the people vote for the party-list organization itself in a party-list system of election, not for the individual nominees, they still have the right to know who the nominees of any particular partylist organization are. The publication of the list of the party-list nominees in newspapers of general circulation serves that right of the people, enabling the voters to make intelligent and informed choices. In contrast, allowing the party-list organization to change its nominees through withdrawal of their nominations, or to alter the order of the nominations after the submission of the list of nominees circumvents the voters' demand for transparency. The lawmakers' exclusion of such arbitrary withdrawal has eliminated the possibility of such circumvention. ATDHSC D Exceptions in Section 8 of R.A. 7941 are exclusive Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list organization can substitute another person in place of the nominee whose name has been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the nominee withdraws in writing his nomination; and (c) when the nominee becomes incapacitated. The enumeration is exclusive, for, necessarily, the general rule applies to all cases not falling under any of the three exceptions. When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and justice. 39 ADCEcI The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt

will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction. E Section 13 of Resolution No. 7804 expanded the exceptions under Section 8 of R.A. No. 7941 Section 13 of Resolution No. 7804 states: AHcDEI

Section 13. Substitution of nominees. A party-list nominee may be substituted only when he dies, or his nomination is withdrawn by the party, or he becomes incapacitated to continue as such, or he withdraws his acceptance to a nomination. In any of these cases, the name of the substitute nominee shall be placed last in the list of nominees. No substitution shall be allowed by reason of withdrawal after the polls. Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the fourth being when the "nomination is withdrawn by the party." Lokin insists that the COMELEC gravely abused its discretion in expanding to four the three statutory grounds for substituting a nominee. We agree with Lokin. aSIETH

The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of all laws and regulations relative to the conduct of an election, 40 has neither the authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose should always accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should remain consistent with the law they intend to carry out. 41 Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in harmony with the provisions of the law, and should be for the sole purpose of carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot amend an act of Congress. 42 The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to Section 8 of R.A. No. 7941, 43 because it has merely reworded and rephrased the statutory provision's phraseology. The explanation does not persuade. DCISAE

To reword means to alter the wording of or to restate in other words; to rephrase is to phrase anew or in a new form. 44 Both terms signify that the meaning of the original word or phrase is not altered. However, the COMELEC did not merely reword or rephrase the text of Section 8 of R.A. No. 7941, because it established an entirely new ground not found in the text of the provision. The new ground granted to the party-list organization the unilateral right to withdraw its nomination already submitted to the COMELEC, which Section 8 of R.A. No. 7941 did not allow to be done. Neither was the grant of the unilateral right contemplated by the drafters of the law, who precisely denied the right to withdraw the nomination (as the quoted record of the deliberations of the House of Representatives has indicated). The grant thus conflicted with the statutory intent to save the nominee from falling under the whim of the party-list organization once his name has been submitted to the COMELEC, and to spare the electorate from the capriciousness of the party-list organizations. We further note that the new ground would not secure the object of R.A. No. 7941 of developing and guaranteeing a full, free and open party-list electoral system. The success of the system could only be ensured by avoiding any arbitrariness on the part of the party-list organizations, by seeing to the transparency of the system, and by guaranteeing that the electorate would be afforded the chance of making intelligent and informed choices of their party-list representatives. SaICcT The insertion of the new ground was invalid. An axiom in administrative law postulates that administrative authorities should not act arbitrarily and capriciously in the issuance of their IRRs, but must ensure that their IRRs are reasonable and fairly adapted to secure the end in view. If the IRRs are shown to bear no reasonable relation to the purposes for which they were authorized to be issued, they must be held to be invalid and should be struck down. 45 F Effect of partial nullity of Section 13 of Resolution No. 7804 An IRR adopted pursuant to the law is itself law. 46 In case of conflict between the law and the IRR, the law prevails. There can be no question that an IRR or any of its parts not adopted pursuant to the law is no law at all and has neither the force nor the effect of law. 47 The invalid rule, regulation, or part thereof cannot be a valid source of any right, obligation, or power. CADHcI Considering that Section 13 of Resolution No. 7804 to the extent that it allows the party-list organization to withdraw its nomination already submitted to the COMELEC was invalid, CIBAC's withdrawal of its nomination of Lokin and the others and its substitution of them with new nominees were also invalid and ineffectual. It is clear enough that any substitution of Lokin and the others could only be for any of the grounds expressly stated in Section 8 of R.A. No. 7941. Resultantly, the COMELEC's

approval of CIBAC's petition of withdrawal of the nominations and its recognition of CIBAC's substitution, both through its assailed September 14, 2007 resolution, should be struck down for lack of legal basis. Thereby, the COMELEC acted without jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to support its action. WHEREFORE, we grant the petitions for certiorari and mandamus. We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that it authorizes a party-list organization to withdraw its nomination of a nominee once it has submitted the nomination to the Commission on Elections. AETcSa Accordingly, we annul and set aside: (a) The resolution dated September 14, 2007 issued in E. M. No. 07-054 approving Citizens' Battle Against Corruption's withdrawal of the nominations of Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as its second, third, and fourth nominees, respectively, and ordering their substitution by Cinchona C. Cruz-Gonzales as second nominee and Armi Jane R. Borje as third nominee; and (b) The proclamation by the Commission on Elections of Cinchona C. CruzGonzales as a Party-List Representative representing Citizens' Battle Against Corruption in the House of Representatives. We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin, Jr. as a Party-List Representative representing Citizens' Battle Against Corruption in the House of Representatives. SaIACT We make no pronouncements on costs of suit. SO ORDERED. Corona, C.J., Carpio, Carpio Morales, Velasco, Jr., Nachura, Leonardo-de Castro, Brion, Del Castillo, Abad, Villarama, Jr. and Perez, JJ., concur. Peralta, J., took no part. Mendoza, J., is on leave. EN BANC [G.R. No. 179817. June 27, 2008.] ANTONIO F. TRILLANES IV, petitioner, vs. HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT-BRANCH 148, MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEA, respondents. DECISION

CARPIO-MORALES, J p: At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the President and key national officials. SICDAa Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. 1 A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening. In the aftermath of this eventful episode dubbed as the "Oakwood Incident", petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup d'etat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al." Close to four years later, petitioner, who has remained in detention, 2 threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. 3 Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests" 4 (Omnibus Motion). Among his requests were: ITcCaS (a) To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc., which are normally held at the Senate of the Philippines located at the GSIS Financial Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.); (b) To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment (i.e., a telephone line and internet access) in order that he may be able to work there when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session. The costs of setting up the said working area and the related equipment and utility costs can be charged against the budget/allocation of the Office of the accused from the Senate; AEIHCS

(c) To be allowed to receive members of his staff at the said working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during working days for purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him in the performance and discharge of his duties as a Senator of the Republic; (d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media regarding the important issues affecting the country and the public while at the Senate or elsewhere in the performance of his duties as Senator to help shape public policy and in the light of the important role of the Senate in maintaining the system of checks and balance between the three (3) co-equal branches of Government; (e) With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on Tuesdays and Fridays, reporters and other members of the media who may wish to interview him and/or to get his comments, reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session; and ScCIaA (f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay City. 5 By Order of July 25, 2007, 6 the trial court denied all the requests in the Omnibus Motion. Petitioner moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three. 7 The trial court just the same denied the motion by Order of September 18, 2007. 8 Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests 9 at the Marine Brig. CETDHA Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon (Esperon); Philippine Navy's Flag Officer-in-Command, Vice Admiral Rogelio Calunsag; Philippine Marines' Commandant, Major Gen. Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obea (Obea).

Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel 10 the day before or on November 29, 2007. Such change in circumstances thus dictates the discontinuation of the action as against the above-named military officers-respondents. The issues raised in relation to them had ceased to present a justiciable controversy, so that a determination thereof would be without practical value and use. Meanwhile, against those not made parties to the case, petitioner cannot ask for reliefs from this Court. 11 Petitioner did not, by way of substitution, implead the police officers currently exercising custodial responsibility over him; and he did not satisfactorily show that they have adopted or continued the assailed actions of the former custodians. 12 CTEaDc Petitioner reiterates the following grounds which mirror those previously raised in his Motion for Reconsideration filed with the trial court: I. THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS: A. UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF INNOCENCE; cDTaSH B. THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D'ETAT", A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE; C. THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/PETITIONER VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD; II. GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE BRIG'S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE SESSIONS; TIHCcA

III. ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK AND SERVE HIS MANDATE AS A SENATOR; - AND IV. MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV. NUR MISUARI. 13 HSaCcE The petition is bereft of merit. In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioner's Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the presumption of innocence is still in his favor. Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup d'etat which is regarded as a "political offense". Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the rampant and institutionalized practice of graft and corruption in the AFP. CASaEc In sum, petitioner's first ground posits that there is a world of difference between his case and that of Jalosjos respecting the type of offense involved, the stage of filing of the motion, and other circumstances which demonstrate the inapplicability of Jalosjos. 14 A plain reading of Jalosjos suggests otherwise, however. The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement. 15 It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No less than the Constitution provides:

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. 16 (Underscoring supplied) ASTDCH The Rules also state that no person charged with a capital offense, 17 or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action. 18 That the cited provisions apply equally to rape and coup d'etat cases, both being punishable by reclusion perpetua, 19 is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged. In the present case, it is uncontroverted that petitioner's application for bail and for release on recognizance was denied. 20 The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail 21 or imported from a trial court's judgment of conviction, 22 justifies the detention of an accused as a valid curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such cases is "regardless of the stage of the criminal action." Such justification for confinement with its underlying rationale of public selfdefense 23 applies equally to detention prisoners like petitioner or convicted prisoners-appellants like Jalosjos. TEDaAc As the Court observed in Alejano v. Cabuay, 24 it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional rights upon confinement, the fact of their detention makes their rights more limited than those of the public. The Court was more emphatic in People v. Hon. Maceda: 25 As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. 26 (Underscoring supplied) ADaEIH These inherent limitations, however, must be taken into account only to the extent that confinement restrains the power of locomotion or actual physical movement. It

bears noting that in Jalosjos, which was decided en banc one month after Maceda, the Court recognized that the accused could somehow accomplish legislative results. 27 The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and political rights. Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails. 28 In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a consensus with the prosecution that media access to him should cease after his proclamation by the Commission on Elections. 29 aSCHcA Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside his place of detention. Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007 petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the "Manila Pen Incident", 30 proves that petitioner's argument bites the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became real. Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail. 31 In cases involving non-bailable offenses, what is controlling is the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of discretion. 32 HTIEaS Petitioner cannot find solace in Montano v. Ocampo 33 to buttress his plea for leeway because unlike petitioner, the therein petitioner, then Senator Justiniano Montano, who was charged with multiple murder and multiple frustrated murder, 34 was able to rebut the strong evidence for the prosecution. Notatu dignum is this Court's pronouncement therein that "if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong, the defendant would flee, if he has the opportunity, rather than face the verdict of the jury." 35 At the time Montano was indicted, when only capital offenses were non-bailable where evidence of guilt is strong, 36 the Court noted the obvious reason that "one who faces a probable death sentence has a particularly strong temptation to flee." 37 Petitioner's petition for bail

having earlier been denied, he cannot rely on Montano to reiterate his requests which are akin to bailing him out. Second, petitioner posits that, contrary to the trial court's findings, Esperon did not overrule Obea's recommendation to allow him to attend Senate sessions. Petitioner cites the Comment 38 of Obea that he interposed no objection to such request but recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the trial court for deeming that Esperon, despite professing non-obstruction to the performance of petitioner's duties, flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political office inside a military installation owing to AFP's a political nature. 39 HAaDTE The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of conditions and restrictions of pre-trial detention. 40 The officer with custodial responsibility over a detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee. 41 Nevertheless, while the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same manner that pleadings are not impositions upon a court. Third, petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from office, depriving the people of proper representation, denying the people's will, repudiating the people's choice, and overruling the mandate of the people. Petitioner's contention hinges on the doctrine in administrative law that "a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor." 42 aCSDIc The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to speak of. In a plethora of cases, 43 the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner's electoral victory only signifies pertinently that when the voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of action [and] . . . with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison." 44 In once more debunking the disenfranchisement argument, 45 it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law.

The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in 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. . . . Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. 46 (Underscoring supplied) aECTcA Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend "social functions." Finding no rhyme and reason in the denial of the more serious request to perform the duties of a Senator, petitioner harps on an alleged violation of the equal protection clause. In arguing against maintaining double standards in the treatment of detention prisoners, petitioner expressly admits that he intentionally did not seek preferential treatment in the form of being placed under Senate custody or house arrest, 47 yet he at the same time, gripes about the granting of house arrest to others. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders. 48 That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office 49 on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around, 50 petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations. CSEHcT Petitioner's position fails. On the generality and permanence of his requests alone, petitioner's case fails to compare with the species of allowable leaves. Jalosjos succinctly expounds: . . . Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the correction system. 51 WHEREFORE, the petition is DISMISSED. SO ORDERED.

[G.R. No. 180643. September 4, 2008.] ROMULO L. NERI, petitioner, vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents. RESOLUTION LEONARDO-DE CASTRO, J p: Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President's conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers. ISTDAH In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Court's coequal branches of government. In this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees' assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld. ASTcEa Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability of Public Officers and Investigations, 1 Trade and Commerce, 2 and National Defense and Security (collectively the "respondent Committees"). 3 A brief review of the facts is imperative. On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of Transportation

and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria MacapagalArroyo ("President Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner's discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege". To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN Project, 4 (b) whether or not she directed him to prioritize it, 5 and (c) whether or not she directed him to approve it. 6 HCacDE Respondent Committees persisted in knowing petitioner's answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner's testimony on the ground of executive privilege. 7 The letter of Executive Secretary Ermita pertinently stated: Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations. IaDcTC The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as defined in Senate v. Ermita, and has advised Secretary Neri accordingly. SAHIaD

Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE/NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner's reply to respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege. He also manifested his willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify". STIEHc Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos. 127, 129, 136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony. On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had not shown "any contemptible conduct worthy of contempt and arrest". He emphasized his willingness to testify on new matters, but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and detention. HSCAIT Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on February 1, 2008. In the Court's Resolution dated February 4, 2008, the parties were required to observe the status quo prevailing prior to the Order dated January 30, 2008. On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under the presidential communications privilege because (a) they related to a quintessential and non-delegable power of the President, (b) they were received by a close advisor of the President, and (c) respondent Committees

failed to adequately show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure", and (e) they issued the contempt order arbitrarily and precipitately. TAcCDI On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds: I CONTRARY TO THIS HONORABLE COURT'S DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS. II CONTRARY TO THIS HONORABLE COURT'S DECISION, THERE CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED. IaCHTS III CONTRARY TO THIS HONORABLE COURT'S DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT: A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS. B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT. C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT. CIcEHS D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS' PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE. IV CONTRARY TO THIS HONORABLE COURT'S DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT: EITcaH A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE. B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA. C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES. IaDSEA D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSG'S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT. E. RESPONDENTS' ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE. In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the case. He further submits the following contentions: first, the assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the presumption of executive privilege because it appears that they could legislate even without the communications elicited by the three (3) questions, and they admitted that they could dispense with petitioner's testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and allencompassing presidential communications privilege; fourth, there is no right to pry into the President's thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a

witness to be furnished advance copy of questions comports with due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court. SDECAI For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez 9 and Chavez v. Public Estates Authority (PEA); 10 (3) the communications elicited by the three (3) questions are covered by executive privilege, because all the elements of the presidential communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order. aSDCIE Incidentally, respondent Committees' objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor General's Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by its untimeliness. The core issues that arise from the foregoing respective contentions of the opposing parties are as follows: EDIHSC (1) whether or not there is a recognized presumptive presidential communications privilege in our legal system; (2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege; (3) whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and (4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order. We shall discuss these issues seriatim. I There Is a Recognized Presumptive Presidential Communications Privilege Respondent Committees ardently argue that the Court's declaration that presidential communications are presumptively privileged reverses the "presumption" laid down

in Senate v. Ermita 11 that "inclines heavily against executive secrecy and in favor of disclosure". Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon. TcAECH Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez, 12 affirmed that the presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita, 13 the case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG), 14 and Chavez v. PEA. 15 The Court articulated in these cases that "there are certain types of information which the government may withhold from the public," 16 that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters"; 17 and that "the right to information does not extend to matters recognized as 'privileged information' under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings". 18 Respondent Committees' observation that this Court's Decision reversed the "presumption that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety. 19 cAaDHT Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, which declared void Sections 2 (b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads: From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied) HSTAcI

Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being claimed by the executive officials mentioned in Section 2 (b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2 (b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive privilege given by the President to said executive official, such that the presumption in this situation inclines heavily against executive secrecy and in favor of disclosure. ECaHSI Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise: Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President's authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. CIaASH In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President", which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2 (b) of E.O. No. 464 does not obtain in this case. aIcCTA

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees' investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita. Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v. Ermita, 21 to wit: Executive privilege The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. DCcTHa Schwart defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." . . . In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution . . ." (Emphasis and italics supplied) DHEACI Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication", which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.

Senate v. Ermita 22 expounds on the constitutional underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President's subordinate officials, as follows: CSIDTc When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied) ITESAc Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications." 23 II There Are Factual and Legal Bases to Hold that the Communications Elicited by the Three (3) Questions Are Covered by Executive Privilege Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive privilege because the elements of the presidential communications privilege are not present. A. The power to enter into an executive

agreement is a "quintessential and non-delegable presidential power". First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential and non-delegable presidential power", because the Constitution does not vest it in the President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to Congress. ScAHTI This argument is unpersuasive. The fact that a power is subject to the concurrence of another entity does not make such power less executive. "Quintessential" is defined as the most perfect

embodiment of something, the concentrated essence of substance. 24 On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor. 25 The power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power. IHcTDA The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President. TDaAHS B. The "doctrine of operational

proximity" was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive. Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for the reason that "it may be misconstrued to expand the scope of the presidential communications privilege to communications between those who are 'operationally proximate' to the President but who may have "no direct communications with her".

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case 27 precisely to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct presidential decision-making, thus: TEHDIA We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in determining whether "[t]he President's confidentiality interests" is implicated). (Emphasis supplied) THEDcS In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice. 28 This goes to show that the operational proximity test used in the Decision is not considered conclusive in every case. In determining which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executive's organizational structure. Thus, respondent Committees' fear that the scope of the privilege would be unnecessarily expanded with the use of the operational proximity test is unfounded. cAaDHT C. The President's claim of executive

privilege is not merely based on

a generalized interest; and in balancing respondent Committees' and the President's clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information. Third, respondent Committees claim that the Court erred in upholding the President's invocation, through the Executive Secretary, of executive privilege because (a) between respondent Committees' specific and demonstrated need and the President's generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency, accountability and disclosure of information, specifically, Article III, Section 7; 29 Article II, Sections 24 30 and 28; 31 Article XI, Section 1; 32 Article XVI, Section 10; 33 Article VII, Section 20; 34 and Article XII, Sections 9, 35 21, 36 and 22. 37 It must be stressed that the President's claim of executive privilege is not merely founded on her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential communications privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the claim. Thus, the Letter stated: CDAHaE The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which this information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. (emphasis supplied) Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department. HDIATS It is easy to discern the danger that goes with the disclosure of the President's communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement particularly while official negotiations are ongoing are matters which

China will surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic relations with the People's Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. STIHaE US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al. 39 upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated: Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld in People's Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms. HSaIET In PMPF v. Manglapus, the therein petitioners were seeking information from the President's representatives on the state of the then on-going negotiations of the RPUS Military Bases Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information". The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and

Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: cHTCaI "A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284) DACcIH xxx xxx xxx

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at". He quickly abandoned his thought. TAEcCS No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in". An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries, viz: ". . . In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations". Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original) aSACED Considering that the information sought through the three (3) questions subject of this Petition involves the President's dealings with a foreign nation, with more reason,

this Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the President's decision-making process, which inevitably would involve her conversations with a member of her Cabinet. THaCAI With respect to respondent Committees' invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees' case. There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has been delegated if they are denied access to information. And the policies on public accountability and democratic government would certainly be mere empty words if access to such information of public concern is denied. aHcACT In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public's right to information or diminish the importance of public accountability and transparency. HSATIC This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents' investigation the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to appear before respondents to answer the said questions. We have discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right. Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to information. By their wording, the intention of the Framers to subject such right to the regulation of the law is unmistakable. The highlighted

portions of the following provisions show the obvious limitations on the right to information, thus: cTADCH Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied) EScaIT In Chavez v. Presidential Commission on Good Government, 40 it was stated that there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such state secrets, they must be "examined in strict confidence and given scrupulous protection". ATICcS Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation, not the people's right to public information. This is the reason why we stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen the power to exact testimony from government officials". As pointed out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's right to information. CTHaSD For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege. III.

Respondent Committees Failed to Show That the Communications Elicited by the Three Questions Are Critical to the Exercise of their Functions In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry. At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees' inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees' power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose of respondent Committees' questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of compelling need for disclosure of the information covered by executive privilege. cSaCDT In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority". In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption. We remain unpersuaded by respondents' assertions. In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. HDITCS The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows: ". . . this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer'. Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ

an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. cSDIHT xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced. In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied) DTIcSH xxx xxx xxx

. . . the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. DcCIAa We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a court's need for facts in order to adjudge liability in a criminal case but rather with the Senate's need for information in relation to its legislative functions. This leads us to consider once again just how critical is the subject information in the discharge of respondent Committees' functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would "aid" them in crafting legislation. DETACa Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the nature of a legislative inquiry in aid of legislation in this wise: The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) CEIHcT Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government. Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states: AcSEHT

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al. v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications. HSaEAD The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be determined without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion: . . . If respondents are operating under the premise that the president and/or her executive officials have committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation, the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation. IEAacS For sure, a factual basis for situations covered by bills is not critically needed before legislative bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all. Thus: CHIEF JUSTICE PUNO So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question Number 1 whether the President followed up the NBN project. According to the other counsel this question has already been asked, is that correct? EDISTc ATTY. AGABIN Well, the question has been asked but it was not answered, Your Honor. CDaTAI CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking function of the Senate? ATTY. AGABIN I believe it is critical, Your Honor. CHIEF JUSTICE PUNO Why? ATTY. AGABIN For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include Executive Agreements had been used as a device to the circumventing the Procurement Law. SIaHTD CHIEF JUSTICE PUNO But the question is just following it up. ATTY. AGABIN I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high government officials. CHIEF JUSTICE PUNO Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question? ATTY. AGABIN I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that other government officials who had something to do with the approval of the contract would be offered the same amount of bribes. ICESTA CHIEF JUSTICE PUNO Again, that is speculative. ATTY. AGABIN That is why they want to continue with the investigation, Your Honor. CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve the project after being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question? SDHTEC ATTY. AGABIN Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact. 42 The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden, the presumption in favor of confidentiality of presidential communication stands. The implication of the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair the President's performance of her function. Needless to state this is assumed, by virtue of the presumption. SEcAIC Anent respondent Committees' bewailing that they would have to "speculate" regarding the questions covered by the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon 43 held that while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability than on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees' self-defeating proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation. AHSEaD Anent the function to curb graft and corruption, it must be stressed that respondent Committees' need for information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress. 44 And if this is the primary objective of respondent Committees in asking the three (3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees' investigation cannot transgress bounds set by the Constitution. STDEcA In Bengzon, Jr. v. Senate Blue Ribbon Committee, 45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases. 46 (Emphasis supplied) There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really 'in aid of legislation' because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the Legislature." 47 (Emphasis and underscoring supplied) EHACcT The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President. 48 While it may be a worthy endeavor to investigate the potential culpability of high government officials, including the President, in a given government transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyone's guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute. Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth", which in respondent Committees' view appears to be equated with the search for persons responsible for "anomalies" in government contracts. TEIHDa No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e., legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of exposure. 49 In this regard, the pronouncement in Barenblatt v. United States 50 is instructive, thus: ICHDca Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the areas in which it may potentially legislate or appropriate, it

cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.) At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient". 51 The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and safeguarded. TaHIDS Should respondent Committees uncover information related to a possible crime in the course of their investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the Legislature's need for information in an investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions subject of the petition. Corollarily, respondent Committees justify their rejection of petitioner's claim of executive privilege on the ground that there is no privilege when the information sought might involve a crime or illegal activity, despite the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica, 52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. TcEaAS Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the

bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct. CSIcHA Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Committee". Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or body. IV Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate. cHAaEC We reaffirm our earlier ruling. The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to discuss it once again. Respondent Committees' second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum. HTCaAD On the contrary, the Court sees the rationale and necessity of compliance with these requirements. An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have been raised many times. 53 Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v. Ermita

are modest mechanisms that would not unduly limit Congress' power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson. 54 Likewise, witnesses have their constitutional right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little political costs or burdens on the part of Congress when viewed vis-vis the immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by William P. Marshall, 55 to wit: A second concern that might be addressed is that the current system allows committees to continually investigate the Executive without constraint. One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose. At present, the charters of some congressional committees are so broad that virtually any matter involving the Executive can be construed to fall within their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and should also serve to contain the investigation once it is instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of action in other areas, they would serve that goal in the context of congressional investigations as well. IcTCHD The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and allows for meaningful debate about the merits of proceeding with the investigation. (Emphasis supplied) 2005jurcd Clearly, petitioner's request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees. Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to the subject matter under inquiry". EDSAac Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress' compliance therewith. We cannot turn a blind eye to possible violations of the

Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia 56 is enlightening, thus: "Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. HAEDIS United States v. Ballin, Joseph & Co., the rule was stated thus: 'The Constitution empowers each House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." In the present case, the Court's exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." (Emphasis supplied) cDAISC In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were present. 57 These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order. When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in plenary session. 58 cSCTEH Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of the

proceedings that took place on said date. Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008 deliberation when the matter was taken up. Section 21, Article VI of the Constitution states that: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Emphasis supplied) ATCaDE All the limitations embodied in the foregoing provision form part of the witness' settled expectation. If the limitations are not observed, the witness' settled expectation is shattered. Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the members are fully articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the proper observance of the Rules. CDAEHS Having touched the subject of the Rules, we now proceed to respondent Committees' fourth argument. Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless the same is repealed or amended. On the nature of the Senate as a "continuing body", this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: DACTSa RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (emphasis supplied) Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. EcICSA This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e., the Senate's main rules of procedure) states: RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied) TAHIED RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied) Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation". 59 The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. TaCDcE The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective. DAHaTc Respondent Committees' last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument. As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing. AaITCH

On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive Secretary Ermita's claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard of petitioner's motion for reconsideration alleging the pendency of his petition for certiorari before this Court. On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated checks and balances among the different branches of government. cdphil In the present case, it is respondent Committees' contention that their determination on the validity of executive privilege should be binding on the Executive and the Courts. It is their assertion that their internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees' paradigm of checks and balances, what are the checks to the Legislature's all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse. While this Court finds laudable the respondent Committees' well-intentioned efforts to ferret out corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and granted instead to the other branches of government. HEISca There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on the constitutional command of transparency and public accountability. The recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the

constitutional guarantee of due process of law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that is its objective. WHEREFORE, respondent Committees' Motion for Reconsideration dated April 8, 2008 is hereby DENIED. CSIHDA SO ORDERED. Corona, Tinga, Chico-Nazario, Velasco, Jr., Nachura and Brion, JJ., concur. Puno, C.J., Please see dissenting opinion. Quisumbing, J., Please see separate opinion. Ynares-Santiago, J., I certify that J. Santiago joined the dissent of C.J. Puno RSP. Carpio, J., I certify that J. Carpio maintained his dissent RSP. Austria-Martinez, J., I certify that J. Martinez joined the dissent of the C.J. RSP. Carpio-Morales, J., dissent to the main ponencia remains. Azcuna, J., I certify that J. Azcuna maintained his dissent and joined C.J. Puno RSP. Reyes, J., please see separate opinion. Separate Opinions PUNO, C.J., dissenting: That the Senate is a continuing body is a constitutional notion often stated, but not much scrutinized. 1 Upon this notion rests the continued life of Senate rules of procedure; hence, the need to moor it on the proper doctrinal anchor. The issues for resolution in respondent Senate Committees' Motion for Reconsideration are as follows: "I. Contrary to this Honorable Court's Decision, there is no doubt that the assailed Orders were issued by respondent Committees pursuant to the exercise of their legislative power, and not merely their oversight functions. II. Contrary to this Honorable Court's Decision, there can be no presumption that the information withheld in the instant case is privileged. III. Contrary to this Honorable Court's Decision, there is no factual or legal basis to hold that the communications elicited by the subject three (3) questions are covered by executive privilege considering that: A. There is no showing that the matters for which executive privilege is claimed constitute state secrets.

B. Even if the tests adopted by this Honorable Court in the Decision is (sic) applied, there is no showing that the elements of presidential communications privilege are present. C. On the contrary, there is adequate showing of a compelling need to justify the disclosure of the information sought. D. To uphold the claim of executive privilege in the instant case would seriously impair the respondents' performance of their primary function to enact laws. E. Finally, the constitutional right of the people to information, and the constitutional policies on public accountability and transparency outweigh the claim of executive privilege. IV. Contrary to this Honorable Court's Decision, respondents did not commit grave abuse of discretion in issuing the assailed contempt Order, considering that: A. There is no legitimate claim of executive privilege in the instant case.

B. Respondents did not violate the supposed requirements laid down in Senate v. Ermita. C. Respondents duly issued the contempt Order in accordance with their internal rules. D. Respondents did not violate the requirement under Article VI, Section 21 of the Constitution requiring that its rules of procedure be duly published, and were denied due process when the Court considered the OSG's intervention on this issue without giving respondents the opportunity to comment. E. Respondents' issuance of the contempt Order is not arbitrary or precipitate." 2

The Motion for Reconsideration presents a long list of issues, but I shall focus on the issue of violation of the requirement under Article VI, Section 21 of the 1987 Constitution that the rules of procedure governing inquiries in aid of legislation be "duly published". As to the remaining issues, I reiterate my position in my Dissenting Opinion to the March 25, 2008 Decision. The textual hook for resolving the publication issue is Article VI, Section 21 of the 1987 Constitution, which provides, viz.: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (emphasis supplied) Publication as a due process requirement

As the 1987 Constitution does not provide the manner of "duly" publishing the rules of procedure under the afore-quoted Article VI, Section 21, the Records of the 1986 Constitutional Commission is a good place to start in interpreting this provision. The Records, however, are also bereft of deliberations to shed light on the publication requirement. Nonetheless, I submit that the landmark case Taada v. Tuvera 3 is a lighthouse that can guide us in navigating through the publication question. In Taada, the petitioners invoked their right to information on matters of public concern under Article IV, Section 6 of the 1973 Constitution, 4 and the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. They sought to compel the respondent public officials to publish or cause to be published in the Official Gazette various presidential decrees, letters of instruction, general orders, proclamations, executive orders, letters of implementation and administrative orders. In ruling in favor of petitioners, the Court interpreted Article 2 of the Civil Code of the Philippines, which states that "(l)aws shall take effect after fifteen days following completion of their publication in the Official Gazette, unless it is otherwise provided . . . ." It held that the phrase "unless it is otherwise provided" refers not to the requirement of publication in the Official Gazette, which is indispensable for the law or regulation to take effect, but to the period of time from publication after which the law shall take effect. The Court allowed the fifteen-day period to be extended or shortened, but not to the extent of altogether omitting publication. The Court reasoned that an omission of publication would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. It noted that it is not unlikely that persons not aware of the laws would be prejudiced as a result, and not because of a failure to comply with them, but simply because they did not know of their existence. Thus, the Court concluded that ". . . all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation." 5 While the Court acknowledged that newspapers of general circulation, instead of the Official Gazette, could better perform the function of communicating laws to the public as such periodicals are more easily available, have a wider readership, and come out regularly it was constrained to hold that publication must be made in the Official Gazette because that was the requirement in Article 2 of the Civil Code. Subsequently, President Corazon C. Aquino issued Executive Order No. 200, allowing publication either in the Official Gazette or in a newspaper of general circulation in the Philippines. 6

In the case at bar, the Senate of the Tenth Congress adopted the subject "Rules of Procedure Governing Inquiries in Aid of Legislation" ("Rules of Procedure Governing Inquiries") on August 21, 1995 pursuant to Article VI, Section 21 of the 1987 Constitution. 7 Section 24 of the Rules provides that the Rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The Senate thus caused it to be published in two newspapers of general circulation, The Philippine Star and Malaya, on August 24, 1995. The published Rules of Procedure Governing Inquiries indicated that it was adopted in the Tenth Congress on August 21, 1995. The Senate of the Thirteenth Congress caused the re-publication of the Rules of Procedure Governing Inquiries on December 1, 2006 in two newspapers of general circulation, The Philippine Star and Philippine Daily Inquirer. The published rules appeared in the same manner it did in the August 24, 1995 publication, i.e., under the heading "Tenth Congress" and with August 21, 1995 as the date of adoption. 8 The publications also stated that the Rules of Procedure Governing Inquiries had been previously published in the August 24, 1995 issues of The Philippine Star and Malaya, and that "(n)o amendments have been made in the Rules since its adoption." Evidently, the Senate of the Thirteenth Congress did not adopt anew the Rules of Procedure Governing Inquiries, as the publications in December 2006 indicated that it was the Rules of Procedure adopted in the Tenth Congress on August 21, 1995 and published on August 24, 1995. There was no amendment made on it since its adoption on August 21, 1995; thus, re-publication was apparently done merely for purposes of public information and not to give effect to a new or amended Rules of Procedure Governing Inquiries. As respondent Senate Committees correctly contend, "not having been amended, modified or repealed since 1995, the Rules of Procedure Governing Inquiries in Aid of Legislation remain in full force and effect." 9 I submit that the publication of the Rules of Procedure Governing Inquiries on August 24, 1995 has satisfied the due process requirement to inform the public of a rule that would govern them and affect their rights. The Resolution of the majority, however, ruled that the respondent Senate Committees failed to meet the publication requirement under Article VI, Section 21 of the 1987 Constitution, as it is not sufficient that the Rules of Procedure Governing Inquiries be published once; instead, it should be published by the Senate of every Congress. Should the Rules of Procedure Governing Inquiries be Published by the Senate of Every Congress?

In disputing the majority Resolution's conclusion and supporting my position that onetime publication suffices, let me first lay down the premise of the Resolution and the Comments of the petitioner and the Office of the Solicitor General (OSG). They all cite the disquisition on this matter by Justice Antonio T. Carpio in his Dissenting and Concurring Opinion to the March 25, 2008 Decision in this case, viz.: "In Arnault v. Nazareno, [footnote omitted] decided under the 1935 Constitution, this Court ruled that 'the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation.' To act as a legislative body, the Senate must have a quorum, which is a majority of its membership. [Section 10(2), Article VI, 1935 Constitution; Section 16(2), Article VI, 1987 Constitution. Both the 1935 and 1987 Constitutions provide that '(A) majority of each House shall constitute a quorum to do business.'] Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body. [See also Attorney General Ex. Rel. Werts v. Rogers, et al., 56 N.J.L. 480, 652 (1844)]. The Supreme Court of New Jersey declared: '(T)he vitality of the body depends upon the existence of a quorum capable of doing business. That quorum constitutes a senate. Its action is the expression of the will of the senate, and no authority can be found which states any other conclusion. All difficulty and confusion in constitutional construction is avoided by applying the rule . . . that the continuity of the body depends upon the fact that in the senate a majority constitutes a quorum, and, as there is always more than a quorum of qualified senators holding seats in that body, its organic existence is necessarily continuous. . . . The senate of the United States remains a continuous body because two-thirds of its members are always, in contemplation of the constitution, in existence.'] "The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to 'constitute a quorum to do business.' [Section 16(2), Article VI, Constitution] Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators." 10 (emphasis supplied)

On the other hand, respondent Senate Committees point out that there is nothing in the wording of Article VI, Section 21 of the 1987 Constitution that requires the Senate of every Congress to publish the Rules of Procedure Governing Inquiries. More than the absence of a textual basis for the requirement, respondent Senate Committees contend that the Senate is a continuing body since the terms of its members expire at different times, and as such, it is not required to formally adopt and publish its Rules of Procedure Governing Inquiries for every Congress, unless it is repealed or amended. 11 It is my considered view that there is merit in the contention of respondent Senate Committees that the Rules of Procedure Governing Inquiries need not be published by the Senate of every Congress, as the Senate is a continuing body. The continuity of these rules from one Congress to the next is both an incident and an indicium of the continuing nature of the Senate. The Senate is a Continuing Body Excerpts from the deliberations of the 1986 Constitutional Commission provide us a brief history of the Senate of the Philippines and its intended nature as a continuing legislative body, viz.: "MR. TINGSON: Madam President and colleagues of this honorable Assembly, I would like to speak briefly on the need for a bicameral legislature elected on a national basis. I would like to thank the Chair and my colleagues for giving me this chance to express my personal view on the type of legislature that we may adopt as we undertake the task of drafting a new Constitution. "Perhaps an approach based on historical perspective is relevant at this point in time, when our decision to adopt a more receptive form of legislature will not only determine our present but also direct our future as a nation. In the Malolos Constitution of 1899, the legislative power was exercised by an assembly of representatives of the nation. Upon the cession of the Philippines to the United States under the Treaty of Paris, we had a military government which was later replaced by a civil government in 1900. During this time, the executive and the legislative functions were exercised by a Commission. With the passage of the Philippine Bill of 1902, a bicameral legislature was created, transforming the Philippine Commission into the Upper Chamber and constituting the Philippine Assembly as the Lower House. "In 1916, pursuant to the Jones Law, legislative power was vested in an all-Filipino bicameral legislature with the Senate as the Upper Chamber and the House of Representatives as the Lower Chamber. The Senators then were elected from the twelve senatorial districts. In the 1935 Constitution, we again adopted a unicameral legislative body known as the National Assembly. The Convention then rejected the proposal for a bicameral legislature with an Upper House called the Senate. The failure of the bicameralist position was due to the division on the question of representation. The Committee on the Legislative proposed that Senators be elected

throughout the Philippines on the basis of proportional representation. Others, however, advocated that each province shall be entitled to one Senator, as the practice in the United States. Still others preferred the system of senatorial district under the Jones Law of 1916. "During the time of President Manuel L. Quezon, an amendment providing for a bicameral legislature was adopted. Senators were elected nationwide. I may say that the reason President Quezon advocated for a bicameral form of legislature is not primarily that he was wary of a strong unicameral body that can dislodge him anytime by impeachment, but that he believed that the Senate affords a sufficient critical and methodical review of legislation. It assumes the role of moderating force in the formulation of legislative policies. It serves as a fiscalizer on the actions of the Lower House, which in usual practice is prone to passing excessive appropriations acts and other forms of legislations that may prove detrimental to the interest of the nation. The Senate, Madam President, according to President Quezon, will serve as a balance for harmony between the executive and the legislative departments and provide a training ground for future leaders. It may be said that it also serves as a vanguard against the activities of politicians and lobbying pressure groups and, likewise, safeguards any possible encroachment upon the constitutional liberties of the people. "As to representation, the Upper House provides national representation which the Lower House cannot attain. In so doing, a bicameral form fosters national unity and consciousness, rather than a representative form merely based on the respective districts of the members of legislature. The scope of legislative responsibility is, therefore, unified with the presence of the Senate. One of the most important features, of course, is that the Senate insures stability of governmental policies as the Senate is a continuing body. 12 xxx xxx xxx

"MR. RODRIGO: . . . I would like to state that in the United States Federal Congress, the term of the members of the Lower House is only two years. We have been used to a term of four years here but I think three years is long enough. But they will be allowed to run for reelection any number of times. In this way, we remedy the too frequent elections every two years. We will have elections every three years under this scheme and we will have a continuing Senate. Every election, 12 of the 24 Senators will be elected, so that 12 Senators will remain in the Senate. We will have a staggered membership in the Senate. In other words, we will have a continuing Senate. 13 xxx xxx xxx

"THE PRESIDING OFFICER (Mr. Rodrigo): Commissioner Davide is recognized.

"MR. DAVIDE: This is just a paragraph of that section that will follow what had earlier been approved. It reads: 'OF THE SENATORS ELECTED IN THE ELECTION IN 1992, THE FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF VOTES SHALL SERVE FOR SIX YEARS AND THE REMAINING TWELVE FOR THREE YEARS.' "This is to start the staggering of the Senate to conform with the idea of a continuing Senate. "THE PRESIDING OFFICER (Mr. Rodrigo): What does the committee say? "MR. SUAREZ: The committee accepts the Davide proposal, Mr. Presiding Officer. "THE PRESIDING OFFICER (Mr. Rodrigo): Is there any objection? (Silence) The Chair hears none; the proposed amendment is approved. "MR. SUAREZ: May we submit that to a vote? VOTING "THE PRESIDING OFFICER (Mr. Rodrigo): As many as are in favor of the Davide amendment, please raise their hand. (Several Members raised their hand.) "As many as are abstaining, please raise their hand. (No Member raised his hand.) "The results show 25 votes in favor and none against; the proposed amendment is approved." 14 (emphasis supplied) The above deliberations show that the nature of the Senate as a continuing body hinged on the staggering of terms of the Senators, such that the term of one-half or twelve of the Senators ("remaining Senators") would subsist and continue into the succeeding Congress, while the term of the other half or twelve Senators ("outgoing Senators") would expire in the present Congress. As pointed out by Commissioner Gregorio J. Tingson, this arrangement whereby half of the Senate's membership continues into the next Congress is designed to help ensure "stability of governmental policies." The structure of the Philippine Senate being evidently patterned after the U.S. Senate, 15 it reflects the latter's rationale for staggering senatorial terms and constituting the Senate as a continuing body. 16 Much can be gleaned from The Federalist Papers in ascertaining the rationale of the Senate's design. The Federalist Papers was written by three "Founding Fathers" of the United States, namely, James Madison, Alexander Hamilton and John Jay. Madison subsequently became President of the U.S., while John Jay became the first Chief Justice of the U.S. Supreme Court. The Federalist Papers is a collection of 85 essays that were written and first published in various New York newspapers in 1787-1788 to explain the U.S. Constitution and urge the people of New York to ratify it. As Madison and Hamilton were both members

of the Federal Convention of 1787, The Federalist Papers is largely used as an authority to interpret the intent of the framers of the U.S. Constitution. 17 James Madison urged that the Senate be so constituted as to have permanency and stability. 18 With their staggered terms and longer tenure, Senators are expected to bring stability and wisdom to legislative measures. 19 Indeed, the framers of the U.S. Constitution considered stability and consistency of law to be fundamental to liberty itself. In The Federalist Nos. 62 and 63, the Senate was extensively discussed. Madison elaborated in The Federalist No. 62, the injurious effects of instability to a nation. Instability "forfeits the respect and confidence of other nations," and the latter would not want to "connect their fortunes" with that nation. He also explained that the domestic effects of mutability are calamitous. "It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow." Another evil of instability, Madison adds, is the "unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens." An unstable government "damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements." Madison asks, "(w)hat prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy." Madison then concludes that above all, the deplorable effect of instability "is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability."

In The Federalist No. 63 written by Madison or Hamilton, it was noted that the "objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents." Madison or Hamilton then suggests that "(t)he proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects." Alexander Hamilton also stated in the debate during the New York ratification convention that "the main design of the Convention, in creating the Senate, was to prevent fluctuations and cabals." 20 Madison agreed with Hamilton's assessment, writing: "Nothing is more certain than that the tenure of the Senate was meant as an obstacle to the instability, which not only history, but the experience of our country, had shown to be the besetting infirmity of popular governments." 21 "In order to form some balance, the departments of government were separated, and as a necessary check, the legislative body was composed of two branches. Steadiness and wisdom are better insured when there is a second branch, to balance and check the first. The stability of the laws will be greater when the popular branch, which might be influenced by local views, or the violence of a party, is checked by another, whose longer continuance in office will render them more experienced, more temperate, and more competent to decide rightly." 22 John Jay's explanation was along the same lines as the thoughts of Madison and Hamilton, that the Senate elections were staggered, so that "uniformity and order, as well as a constant succession of official information will be preserved." 23 In the deliberations on the U.S. Constitution by the Federal Convention of 1787, one of the considerations stated for a proposed staggering of nine-year senatorial terms in three divisions was to give other countries "confidence in the stability or efficacy" 24 of the American government, the lack of which has prevented Great Britain from entering into a commercial treaty with the U.S. 25 "Permanency and safety to those who are to be governed" 26 were also cited as goals for creating the Senate.

In McGrain v. Daugherty, 27 the U.S. Supreme Court confirmed the view that the Senate is a "continuing body whose members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant at the end of each Congress, two-thirds always continuing into the next Congress, save as vacancies may occur through death or resignation." 28 In that case, the investigation by a Senate committee was ordered during the Sixty-eighth Congress, which expired on March 4, 1925. The Senate, however, amended the resolution authorizing the investigation to allow the committee to sit at such times and places as it might deem advisable or necessary. In addressing the question of whether the investigation may be continued after the expiration of the Sixty-eighth Congress, the U.S. High Court, citing Mr. Hinds in his collection of precedents, held that the Senate as a continuing body, may give authority to its committees to continue through the recess following the expiration of a Congress. The Court ruled that a Senate committee established in the Sixty-eighth Congress could be "continued or revived" by motion after such expiration and, if continued or revived, would have all its original powers. 29 The Philippine Supreme Court cited McGrain in Arnault v. Nazareno. 30 The issue in Arnault, however, was the validity of the exercise of the contempt power of the Senate after the expiration of the first regular session (of the Second Congress) in which the Senate resolved that petitioner Jean Arnault be arraigned for contempt, and not after the termination of the Second Congress. Nonetheless, in upholding the continuing contempt power of the Senate, the Court held, viz.: "Like the Senate of the United States, the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation. Members of the House of Representatives are all elected for a term of four years; so that the term of every Congress is four years. The Second Congress of the Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The resolution of the Senate committing the Petitioner was adopted during the first session of the Second Congress, which began on the fourth Monday of January and ended on May 18, 1950. ". . . We find no sound reason to limit the power of the legislative body to punish for contempt to the end of every session and not to the end of the last session terminating the existence of that body. The very reason for the exercise of the power to punish for contempt is to enable the legislative body to perform its constitutional function without impediment or obstruction. Legislative functions may be and in practice are performed during recess by duly constituted committees charged with the duty of performing investigations or conducting hearing relative to any proposed legislation. To deny to such committees the power of inquiry with process to enforce it would be to defeat the very purpose for which that power is recognized in the legislative body as an essential and appropriate auxiliary to its legislative function. It

is but logical to say that the power of self-preservation is coexistent with the life to be preserved. "But the resolution of commitment here in question was adopted by the Senate, which is a continuing body and which does not cease to exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no limit as to time to the Senate's power to punish for contempt in cases where that power may constitutionally be exerted as in the present case. "Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The Senate has ordered an investigation of the Buenavista and Tambobong estates deal, which we have found it is within its competence to make. That investigation has not been completed because of the refusal of the petitioner as a witness to answer certain questions pertinent to the subject of the inquiry. The Senate has empowered the committee to continue the investigation during the recess. By refusing to answer the questions, the witness has obstructed the performance by the Senate of its legislative function, and the Senate has the power to remove the obstruction by compelling the witness to answer the questions thru restraint of his liberty until he shall have answered them. That power subsists as long as the Senate, which is a continuing body, persists in performing the particular legislative function involved. To hold that it may punish the witness for contempt only during the session in which investigation was begun, would be to recognize the right of the Senate to perform its function but at the same time to deny to it an essential and appropriate means for its performance. Aside from this, if we should hold that the power to punish for contempt terminates upon the adjournment of the session, the Senate would have to resume the investigation at the next and succeeding sessions and repeat the contempt proceedings against the witness until the investigation is completed an absurd, unnecessary, and vexatious procedure, which should be avoided." 31 The Resolution of the majority, the petitioner and the OSG make much of the fact, however, that two-thirds of the membership of the Senate continued into the next Congress under the 1935 Constitution when Arnault was decided, and only half of the Senate membership now continues into the next Congress under the 1987 Constitution. They contend that since both the 1935 and the 1987 Constitutions provide that a "majority of each House shall constitute a quorum to do business", 32 the Senate under the 1987 Constitution has lost its continuing nature, as it no longer has a continuing quorum to do business when half of its membership's term expires at the end of every Congress. 33 Even following their contention that the satisfaction of the quorum to do business is based on the number of "remaining Senators," a textual reading of the provisions on legislative functions under the 1935 Constitution would show that even the continuing two-thirds membership of the Senate (or sixteen Senators) cannot perform all the legislative functions of the Senate. A three-fourths (or eighteen Senators) vote is necessary to override the veto of the President with respect to "appropriation bills which appropriate a sum in excess of ten per centum of

the total amount voted in the appropriation bill for the general expenses of the Government for the preceding year, or if it should refer to a bill authorizing an increase of the public debt." 34 More importantly, the reasoning of the Resolution of the majority, the petitioner and the OSG that the continuing nature of the Senate depends on the presence of a quorum, counting the number of "remaining Senators" falls under its own weight when we take a hard look at the Constitutional provision on the term of Senators. Article VI, Section 4 of the 1987 Constitution, provides that, "(t)he term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election." (emphasis supplied) Pursuant to this provision, the term of office of a Senator expires before noon on the thirtieth day of June, six years from commencement of his term. Thus, upon expiration of the term of the twelve "outgoing Senators" on June 30, the term of the twelve "new Senators" will commence. 35 The Senators-elect take their oath of office upon commencement of their term and begin to exercise their functions; 36 the collective oath-taking of the Senators upon the opening of Congress is normally but a tradition and a formality. 37 In the Fourteenth Congress, for example, newly elected Senator Loren B. Legarda filed Senate Bill No. 225, entitled "An Act Providing for the Establishment of Barangay Drugstores, Otherwise Known as 'Botica Sa Barangay' and for other Purposes", on June 30, 2007, the day her term commenced and before the opening of the Fourteenth Congress on July 23, 2007. Likewise, on the same day, newly re-elected Senator Francis N. Pangilinan filed Senate Bill No. 138, entitled "An Act Providing for a Magna Carta for Students." Contrary to the contention of the Resolution of the majority, petitioner and the OSG, at no point from one Congress to the next is there a lack of quorum based on the terms of office of the "remaining Senators" and "new Senators". Under the 1987 Constitution, on the opening of a Congress on the fourth Monday of July, 38 the quorum is based on the number of both the "remaining Senators" and the "new Senators" whose terms have already commenced on June 30. A similar situation obtained under the 1935 Constitution, in which three sets of eight Senators had staggered six-year terms. Article VI, Section 3 of the 1935 Constitution provides: "The term of office of Senators shall be six years and shall begin on the thirtieth day of December next following their election." Thus, the Senate under both the 1935 39 and the 1987 40 Constitutions counted the quorum based on the number of "remaining Senators" and "new Senators" upon opening of every Congress. This unbroken practice of the Senate of counting the quorum at the start of every new Congress based on both the "remaining Senators" and "new Senators", and not only on the two-thirds or one-half "remaining Senators", is not something to be lightly cast aside in ascertaining the nature of the Senate as a continuing body. 41 In the U.S., the Senate of the 18th century 42 and the present

day upper chamber 43 have also counted their quorum based on the number of both the "remaining Senators" and "new Senators" upon the opening of every Congress. It is worth noting that in the June 25 and 26, 1787 debates of the Federal Convention of 1787 on the staggering of terms of office of Senate members whether the term under consideration was nine years or six years with triennial staggering the quorum requirement was not mentioned as a consideration to maintain continuity in the Senate. 44 Conversely, neither was the staggering of terms considered when the quorum requirement was taken up by the Convention two months later on August 10, 1787. 45 When the quorum requirement was being set by the Federal Convention, there were proposals to peg it at the majority or less than the majority of the members of the Senate; or to leave it to the legislature to set the quorum requirement, considering the secession of some States that would not send delegates to the Senate and the inconvenience of not reaching a quorum. 46 There was also a proposal to fix the quorum at two-thirds of the members of the Senate. 47 In setting the quorum requirement, the balance being struck was between the inconvenience of not being able to muster a quorum if it was set too high and the insufficiency in representation of the interests of the people if it was set too low. 48 The continuity of the Senate, considering the staggered terms of its members, was apparently not part of the equation. It may be argued that under the 1987 Constitution, some "outgoing Senators" might resign prior to the termination of their terms on June 30 to run for election in May, 49 thus, possibly diminishing the number of Senators to only twelve or less than the quorum requirement. However, the argument also holds true under the 1935 Constitution. It could happen that four of the sixteen "remaining Senators" would resign or die, such that there would be only twelve Senators left, or less than the quorum requirement under the 1935 Constitution. (Even Arnault acknowledged this eventuality; hence, as afore-quoted, it ruled that "the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation.") The point of the illustration is that the nature of the Senate as a continuing body under both the 1935 and the 1987 Constitutions cannot be made to depend on the actual presence of a quorum which, in turn, depends on the tenure of the Senators. In sum, it is the staggering of the terms of the 24 Senators and allowing the terms of office of a portion of the Senate membership to continue into the succeeding Congress whether two-thirds under the 1935 Constitution or one-half under the 1987 Constitution that provides the stability indispensable to an effective government, and makes the Senate a continuing body as intended by the framers of both the 1935 (as amended) and the 1987 Constitutions.

Part of the stability provided by a continuing Senate is the existence of rules of proceedings adopted pursuant to the power granted by the U.S. Constitution, 50 rules that continue to be in effect from one Congress to the next until such rules are repealed or amended, but with the process for repeal and amendment also being governed by the subsisting rules. U.S. Senator Francis Warren cautions that a Senate that is not continuing, but instead new in each Congress, opens all rules to debate as a new matter; the Senate will be totally and wholly without rules as it proceeds "at sea without rudder or compass regarding rules." 51 Thus, in the U.S., the Senate rules of proceedings provide that "(t)he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." 52 These rules, adopted on January 11, 1884 and made effective on January 21, 1884, continue to be in effect to this day 53 alongside the continuing membership of the Senate. 54 Patterned after the U.S. Constitution, the 1987 Constitution also provides under Article VI, Section 16 (3) that "(e)ach House may determine the rules of its proceedings. . ." As in the U.S. Senate, the Senate Rules (of proceedings) adopted by the Philippine Senate have a continued effect from one Congress to the next as shown by the following provisions of the Philippine Senate Rules: "Rule LII (Date of Taking Effect), Section 137: These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed." xxx xxx xxx

"Rule LI (Amendments to, or revisions of, The Rules), Section 136: At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. "The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval." (emphasis supplied) It is obvious that the above rules do not provide for the expiration of the Senate Rules at the termination of every Congress. On the contrary, Rule LI provides that at the opening of every Congress, the Senate President may endorse the Senate Rules to the appropriate committee for amendment or revision, which connotes that the Senate Rules must be subsisting for them to be subject to amendment or revision. If the Senate were not a continuing body, the Senate Rules governing its proceedings would not be given continuing effect from one Congress to the next. The earlier Senate Rules adopted in 1950 under the 1935 Constitution also evince the same intent of the Senate to make its rules continuing, in conformity with its continuous nature as a legislative body. Chapter LII (Amendments to or Revisions of the Rules), Section 121 of the 1950 Rules, provides, viz.:

"Sec. 121. At the beginning of each session in which the Senators elected in the last or preceding elections shall begin their term of office, and as soon as the Committee on Rules shall have been organized, the President of the Senate shall endorse the Rules to said Committee for amendment or revision. "An amendment to the Rules, may, however, be presented by means of a motion containing the proposed amendment. "This should be presented at least one day before its consideration, and the vote of a majority of the Senators present in the session shall be required for its approval." (emphasis supplied) While the present Senate Rules provide under Rule XLIV (Unfinished Business), Section 123 that "(a)ll pending matters and proceedings shall terminate upon the expiration of one (1) Congress," between the expiration of a Congress and the opening of the succeeding Congress, some functions of the Senate continue during such recess. Aside from the administrative functions performed by Senate employees for the continued operation of the Senate as an institution, legislative functions continue to be exercised. The offices of the "remaining Senators" continue their legislative work in preparation for the succeeding Congress. These continuing functions require continuing effectivity of the Senate Rules. An example of a provision of the Senate Rules applicable to these continuing activities is Rule XXII (Filing and Consideration of Bills and Resolutions), Section 61, which provides that "(a)ll bills and resolutions shall be filed with the Office of the Secretary whether the Senate is in session or not." To illustrate, in the current Fourteenth Congress, Senate Bill No. 1 entitled, "An Act Exempting the Purchase of Medicine by Senior Citizens from the Coverage of the Value Added Tax, and Amending Section 109 (1) of the National Internal Revenue Code, as Amended" was filed by Senator Jinggoy E. Estrada on June 30, 2007 after the adjournment of the third or final regular session 55 of the Thirteenth Congress and before the opening of the Fourteenth Congress. 56 On the same date, Senator Rodolfo G. Biazon filed Senate Bill No. 32 entitled, "An Act Providing for the National Defense and Security of the Republic of the Philippines, and for Other Purposes". Both bills were taken up on first reading and referred to the proper Senate Committees in the Senate session on July 24, 2007, a day after the Fourteenth Congress opened on July 23, 2007, when the Senate was organized with the election of its officers, and President Gloria Macapagal-Arroyo delivered her State of the Nation Address. 57 It should be noted that the termination of unfinished business upon expiration of one Congress is sanctioned by Rule XLIV, Section 123 of the Senate Rules. The Senate Rules, may, however, be amended under Rule LI, Section 36. It remains to be seen whether by amendment of the Senate Rules, the Senate would allow a Senate Committee conducting an investigation, for example, to continue its proceedings after the expiration of a Congress as in the afore-discussed case, McGrain v. Daugherty.

Prescinding from the continuing nature of the Senate and the continuing effectivity of the Senate Rules (of proceedings), it is my considered view that the Rules of Procedure Governing Inquiries adopted by the Senate of the Tenth Congress on August 21, 1995 should likewise be recognized to have continuing force and effect after being "duly published" in two newspapers of general circulation on August 24, 1995. Deference to the legislative department in interpreting its rule-making power The power of each House of Congress to adopt its own rules of proceedings under Article VI, Section 16 58 of the 1987 Constitution is so obvious that the 1986 Constitutional Commission hardly deliberated on the matter. Even the framers of the U.S. Constitution, from which our own provision on rules of proceedings was adopted, did not prescribe standards for the promulgation of internal procedural rules and spent no time debating this power of each House of Congress; they conferred essentially open-ended discretion on each chamber to regulate its own internal proceedings. 59 In the 1787 Federal Convention, it was not a controversial principle that each chamber should have the ability to adopt rules binding on its members. "The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority." 60 It cannot be gainsaid that rules of proceedings are a necessity in preserving order, decency and regularity in a dignified public body. These rules are weapons of the weaker party to defend themselves from irregularities and abuses "which the wantonness of power is but too often apt to suggest to large and successful majorities." 61 Thomas Jefferson stated in the opening of his widely used, A Manual of Parliamentary Practice, viz.: "Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, 'It was a maxim he had often heard when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of the administration and those who acted with the majority of the House of Commons, than in neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check, and control, on the actions of the majority; and that they were, in many instances, a shelter and protection to the minority, against the attempts of power.'" 62 (emphasis supplied) Still and all, the rule-making power of the legislature is not absolute. The outer limit of a legislative rule is reached when it collides with a constitutional proscription. The case in which the U.S. Supreme Court made its most extensive analysis of the nature and limitations of the congressional rule-making power was United States v. Ballin, 63 a late nineteenth-century case that involved the constitutional quorum requirement. 64

The origin of Ballin was a quorum-busting technique used by both the Republicans and the Democrats in that era to halt business in the House of Representatives. Under the rules of the House at that time, the Speaker established the presence of a quorum by counting the voting members. In the 1888 elections, the Republicans won the majority for the first time in fourteen years. The new Speaker of the Fifty-first Congress, Thomas B. Reed of Maine, found himself in the position of having 166 Republican members, the exact number needed to meet the quorum requirement. 65 Democrats could thus stop business in the House by merely refusing to vote and requiring the Republicans to establish a quorum with their members alone. On January 29, 1890, Democrats halted business on a contested election case by remaining silent to defeat the quorum requirement. 66 Speaker Reed retaliated by announcing the names of members "present and refusing to vote," thereby establishing that a majority of the House was present and the House was thereby able to conduct business. 67 Speaker Reed's famous interpretation of the quorum rule became "Rule XV" 68 in the Fifty-first Congress, the constitutionality of which became the central issue in Ballin. 69 Ballin involved a tariff law passed by the House in 1890 under Speaker Reed's new quorum-counting rule. 70 The plaintiff was a New York merchant who had imported worsted wool fabrics subject to that law. The enactment passed the House by a vote of 138 to none, with the Speaker noting, in accordance with the new Rule XV, that 74 members were in the chamber but not voting, bringing the total number of lawmakers present to 212 a figure well above the 166 members needed to make a quorum. 71 The merchant challenged the legality of the tariff, arguing that the law had not legitimately passed the House, because a quorum had not been present to do business. 72 In ruling that the tariff law validly passed the House, the Ballin Court upheld the action of the Speaker, viz.: "The action taken was in direct compliance with this rule. [Rule 15 provides, viz.: '. . . (3) On the demand of any member, or at the suggestion of the speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business.' H. J. 230, Feb. 14, 1890.] The question, therefore, is as to the validity of this rule, and not what methods the speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these

limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. "The constitution provides that 'a majority of each [house] shall constitute a quorum to do business.' In other words, when a majority are present, the house is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the constitution requires is the presence of a majority, and when that majority are present, the power of the house arises. "But how shall the presence of a majority be determined? The constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact. It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count, as the sole test; or the count of the speaker or the clerk, and an announcement from the desk of the names of those who are present. Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact; and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the house may adopt either or all, or it may provide for a combination of any two of the methods. That was done by the rule in question, and all that that rule attempts to do is to prescribe a method for ascertaining the presence of a majority, and thus establishing the fact that the house is in a condition to transact business." 73 (emphasis supplied) In Defensor-Santiago v. Guingona, Jr., 74 which involved an interpretation of the rules of the Senate but not private rights, the Court emphasized the respect due a co-equal branch of government in the determination of its internal affairs, viz.: "On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work. xxx xxx xxx

". . . Constitutional respect and a becoming regard for the sovereign acts of a coequal branch prevents this Court from prying into the internal workings of the Senate. To repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in upholding the rule and majesty of the law." 75 (footnote omitted, ital. in original)

Following the principles of Ballin and Santiago, I submit that the Court ought to take a deferential stance in interpreting the rule-making power of the Senate as a co-equal branch of government, so long as rights of private parties are not infringed. 76 The Rules of Procedure Governing Inquiries is akin to the Senate Rules (of proceeding) in that the former governs the internal workings of the Senate and its committees, although admittedly different in some respects from the Senate Rules because it affects rights of parties not members of the Senate and, hence, requires publication. To the extent that the Rules of Procedure Governing Inquiries does not transgress the requirement of due process as its outer limit, the Senate should be given room to interpret the duration of its effectivity from one Congress to the next. Similar to Ballin, there is no standard set by Article VI, Section 21 of the 1987 Constitution, as to the manner and frequency of publication of the Rules of Procedure Governing Inquiries. It is within the competency of the Senate to prescribe a method that shall reasonably conform to the due-process purpose of publication, and the Senate has validly provided the method of one-time publication of its Rules of Procedure Governing Inquiries in two newspapers of general circulation, in line with the ruling in Taada. The unbroken practice of the Senate of not adopting Rules of Procedure Governing Inquiries and publishing the same in every Congress, owing to its nature as a continuing body, is not something to be lightly brushed aside, 77 especially considering the grave consequences of cutting this continuity. Holding itself to be a continuing body, the Senate has dispensed with the adoption not only of Rules of Procedure Governing Inquiries, but also of Senate rules (of proceedings) at the start of every Congress in the last ten years. 78 As a consequence of the absence of rules if the Senate is held to be not a continuing body, its acts during these Congresses may be put into question. A mathematical calculation of a quorum in view of the staggered terms of the Senate membership cannot simply subvert the deeplyentrenched thought-out rationale for the design of a continuing and stable Senate, shown to be necessary in promoting effective government and protecting liberties. Where rights are not violated, the Court ought not like lightning strike down a valid rule and practice of a co-equal branch of government, lest the walls delineating powers be burned. I vote to grant the Motion for Reconsideration. QUISUMBING, J., on the motion for reconsideration: The instant motion filed by the respondents Senate Committees on Accountability of Public Officers and Investigations, Trade and Commerce, and National Defense and Security, seeks a reconsideration of the Court's March 25, 2008 Decision, which granted petitioner Romulo Neri's petition for certiorari. The Court nullified the Order dated January 30, 2008, of the Senate Committees citing petitioner in contempt and directing his arrest and detention. In said Decision, I concurred in the result.

For as long as the requirement of due process is paramount in proceedings involving life and liberty, the instant motion for reconsideration, which merely reiterates arguments that have been adequately threshed out in the Decision, 1 must emphatically be denied. With due respect, we find that in Neri's case, respondents had neglected to observe elements of due process on more than one occasion in their proceedings, and thereby committed grave abuse of discretion which is proscribed by the present fundamental law. 2 Worth stressing at the outset, the Senate is constitutionally required to publish its rules of procedure on the conduct of legislative inquiries in aid of legislation. Section 21 of Article VI of the 1987 Constitution states: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. Dwelling on this provision, Senate of the Philippines v. Ermita 3 declared: Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House's duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. 4 Also on this matter, the eminent constitutionalist Fr. Joaquin G. Bernas, amply commented: The significance of the second limitation on the investigatory power that the inquiry be "in accordance with its duly published rules of procedure" can, perhaps, be appreciated by considering it side by side with the control Congress has over its rules when they affect merely matters internal to it. As already seen in Osmea, Jr. v. Pendatun, where Congress suspended the operation of a House rule which could have protected Congressman Osmea, the Supreme Court accepted the view that parliamentary rules "may be waived or disregarded by the legislative body." This view can be accepted as applicable when private rights are not affected. When, however, the private rights of witnesses in an investigation are involved, Section 21 now prescribes that Congress and its committees must follow the "duly published rules of procedure". Moreover, Section 21 may also be read as requiring that Congress must have "duly published rules of procedure" for legislative investigations. Violation of these rules would be an offense against due process. The third limitation on legislative investigatory power is that "the rights of persons appearing in or affected by such inquiries shall be respected." This is just another way of saying that legislative investigations must be "subject to the limitations placed by the Constitution on governmental action." And since all governmental action must be

exercised subject to constitutional limitations, principally found in the Bill of Rights, this third limitation really creates no new constitutional right. But it emphasizes such fundamentals as the right against self-incrimination and unreasonable searches and seizures and the right to demand, under due process, that Congress observe its own rules. 5 Justice Isagani A. Cruz, in his book Philippine Political Law, offers a verifiable observation: The reason is that in the past this power was much abused by some legislators who used it for illegitimate ends or to browbeat or intimidate witnesses, usually for grandstanding purposes only. There were also times when the subject of the inquiry was purely private in nature and therefore outside the scope of the powers of the Congress. To correct these excesses, it is now provided that the legislative inquiry must be in aid of legislation, whether it be under consideration already or still to be drafted. Furthermore, the conduct of the investigation must be strictly in conformity with the rules of procedure that must have been published in advance for the information and protection of the witnesses. 6 Hence, it is indispensable that the Senate Rules of Procedure during the current 14th Congress must be duly published. The problem is, the rules have not been published in the Official Gazette or newspaper of general circulation as required by Taada v. Tuvera. 7 Publication in either of these forms is mandatory to comply with the due process requirement. Due process requires that fair notice be given to those concerned before the rules that put their liberty at risk take effect. 8 The rationale of this requirement was enunciated in Taada as follows: Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn. 9 Fr. Bernas also said that there can be no such thing as a law that is effective immediately, even if the law is not penal in nature. The underlying reason for this rule is that due process, which is a rule of fairness, requires that those who must obey a command must first know the command. 10 Hence, the current Senate cannot in good conscience neglect to publish its Rules of Procedure. Nor could its Committee ignore the Rules, specially those on quorum. In the absence of a published rule of procedure on a matter which is the subject of legislative inquiry, any action which affects substantial rights of persons would be anathema, and risks unconstitutionality. Even if there is such a rule or statute duly

published, if it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application, the rule or statute would be repugnant to the Constitution in two respects: it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves the law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 11 How much more in this case where there is a patent lack of publication and proper notice of the applicable rules. Or where the rules are misread and misapplied resulting in lack of quorum. 12 Beyond debate, the fundamental law prohibits deprivation of liberty without due process of law. Comparatively speaking, the Court has on many occasions required judges to comply strictly with the due process requirements on issuing warrants of arrest, failure of which has resulted in the voiding of the warrants. The denial of a person's fundamental right to due process amounts to the illegality of the proceedings against him. The doctrine consistently adhered to by the Supreme Court is that a denial of due process suffices to cast on the official act taken by whichever branch of the government the impress of nullity, the fundamental right to due process being a cornerstone of our legal system. 13 The right to due process is a cardinal and primary right which must be respected in all proceedings. 14 Even granting arguendo that the rules had been published, the Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee do not state that respondent Committees have the power to issue an order of arrest. The rules only authorize the Committees to detain a witness found guilty of contempt. The Committees cannot go outside the clear ambit of its rules of procedure, as due process demands proper obedience to them. 15 Moreover, it is also glaring that respondents did not consider petitioner's request for an advance copy of the questions that would be asked of him, as it was not unreasonable and difficult to comply with. In a letter dated November 29, 2007 to the Blue Ribbon Committee, petitioner requested that if there were new matters not yet taken up during the September 26, 2007 hearing, he be furnished questions in advance as to those matters he needed to clarify so that he may adequately prepare himself as a resource person. This request was further reiterated in another letter sent by his counsel, Atty. Antonio R. Bautista. Unfortunately, respondents did not grant this valid request, and instead precipitately issued the contempt and arrest order against petitioner.

Further, in our considered view, Neri was entitled to a ruling on his claim of executive privilege. For initially, both sides had agreed in open court to allow more exhaustive inquiry in the Senate on this matter. But as respondents themselves admitted, they

did not rule on the claim of executive privilege, but instead sanctioned Neri for contempt. The very recent case of Aquino v. Ng 16 is instructive on the subject of contempt, as far as court procedures are concerned. It held: Moreover, the RTC failed to observe the standards of due process when it first cited petitioner for contempt of court. It must be stressed that indirect contempt proceedings partake of the nature of a criminal prosecution; hence, strict rules that govern criminal prosecutions also apply to a prosecution for criminal contempt; the accused is to be afforded many of the protections provided in regular criminal cases; and proceedings under statutes governing them are to be strictly construed. The records do not bear any indication that petitioner was afforded an opportunity to rebut the charges against him when he was first charged by respondent with contempt. While petitioner was able to oppose respondent's motion, inasmuch as an indirect contempt charge partakes of the nature of a criminal charge, conviction cannot be had merely on the basis of written pleadings. There is no question that petitioner's disobedience to the RTC's lawful order constitutes indirect contempt of court. This, however, was not a license for the RTC to disregard petitioner's rights. It should have held a hearing in order to provide petitioner with the opportunity to state his defense and explain his side. A hearing affords the contemner the opportunity to adduce before the court documentary or testimonial evidence in his behalf. The hearing will also allow the court more thorough evaluation of the defense of the contemner, including the chance to observe the accused present his side in open court and subject his defense to interrogation from the complainants or the court itself. 17 Also, Commissioner Rodriguez v. Judge Bonifacio 18 held: Contempt of court has been distinctly described as an offense against the State and not against the judge personally. To reiterate, a judge must always remember that the power of the court to punish for contempt should be exercised for purposes that are not personal, because that power is intended as a safeguard, not for judges as persons, but for the functions they exercise. Viewed vis--vis the foregoing circumscription of a court's power to punish for contempt, it bears stressing that the court must exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. 19 Comparatively, the subjective nature of respondents' action in the present case is patent if not glaring. This is in contrast with the legitimate purpose of the inquiry in the case of Sabio v. Gordon, 20 where the petitioners therein were invited to the Senate's public hearing on Senate Resolution No. 455, particularly "on the anomalous

losses incurred by the Philippine Overseas Telecommunications Corporation, Philippine Communications Satellite Corporation, and Philcomsat Holdings Corporations due to the alleged improprieties in the operations by their respective board of directors." The inquiry focused on therein petitioners' acts committed in the discharge of their duties as officers and directors of said corporations where the government has interest. 21 Here, in the instant controversy, the least respondents could have done, after browbeating the petitioner Neri (who was sick at that time) with a barrage of questions was to have granted his request for a copy of the questions for the next hearing. It is a well-settled principle in law that what due process contemplates is freedom from arbitrariness; what it requires is fairness and justice; substance, rather than form, being paramount. 22 It is essential that the contemner be granted an opportunity to meet the charges against him and to be heard in his defense, as contempt of court proceedings are commonly treated as criminal in nature. 23 A finding of guilt for an offense, no matter how light, for which one is not properly charged and tried cannot be countenanced without violating the rudimentary principle of due process. 24 The case of Caas v. Castigador 25 held: [T]he salutary rule is that the power to punish for contempt must be exercised on the preservative not vindictive principle, and on the corrective not retaliatory idea of punishment. The courts and other tribunals vested with the power of contempt must exercise the power for contempt for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercised. xxx xxx xxx

Viewed in the light of the foregoing circumscription of a court's power to punish for contempt, it bears stressing that the court must exercise the power of contempt judiciously and sparingly with utmost self-restraint, with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. 26 All told, in our humble view, the respondents did not observe basic tenets of due process, which we believe is more than enough reason to grant petitioner Neri's petition. Worth stressing again, whenever there is an imminent threat to the life and liberty of the person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored. 27 In sum, we agree that respondents' Motion for Reconsideration must be denied. This Court did not err in upholding petitioner Neri's constitutional rights, particularly to due process, by granting his petition in the assailed Decision dated March 25, 2008.

AZCUNA, J., dissenting: I fully join Chief Justice Reynato S. Puno in his dissenting opinion. It was the intent of the Constitutional Commission to preserve the nature of the Senate as a continuing body to provide an institutional memory in the legislature. The deliberations in the Commission, cited by the Chief Justice, clearly bear this out. The Senate, therefore, need not re-publish its Rules with every new Congress. aCTHEA Furthermore, as I opined in my dissent in the JPEPA case, 1 specific provisions of the present Constitution conferred on Congress an information function, apart from its legislative function, which it may exercise to enable our people to effectively take part in governance. The Senate investigation at issue is, therefore, in order even apart from the power to legislate. TCDHaE I, therefore, VOTE to GRANT the Senate's Motion for Reconsideration and DISMISS the petition for lack of merit. REYES, R.T., J.: I AM one of two Justices who only concurred in the result of the majority decision penned by esteemed colleague, Justice Teresita Leonardo-de Castro. I again effectively do so now in the resolution of the motion for reconsideration through this separate opinion. It has become necessary for me to clarify for the record my position on the issues of executive privilege and the contempt and arrest powers of the Senate. aECSHI As expected, given the highly-politicized complexion of the case, the Court ruling received a mixed reaction of praise and flak. My kind of concurrence and that of Justice Leonardo A. Quisumbing did not escape criticism. An article 1 erroneously described Our vote as "unclear," casting doubt on the final verdict of the Neri petition. Another item 2 wrongly branded us as mere "straddlers", sitting on both sides of the fence and coming up with a decision only at the last minute. HTDAac A sad commentary of the times is when a Justice takes a stand which flatters the political opposition, it is hailed as courageous; when the stand benefits the administration, it is hounded as cowardly. But judicial independence is neither here nor there. For me, it is judicial action that is right and reasonable, taken without fear or favor, unmindful of incidental consequences. I thus take exceptions to the unfounded criticisms. For one, a concurrence in the result is not unprecedented. Several justices in this Court's long history had voted in a similar fashion. Then Chief Justice Ramon Aquino voted in the same manner in the 1985 case of Reformina v. Tomol, Jr., 3 a case

tackling the proper interest rate in an action for damages for injury to persons and loss of property. DACTSH In the 2001 landmark case of Estrada v. Desierto, 4 involving the twin issues of the resignation of deposed President Joseph Estrada and the legitimacy of the assumption of President Gloria Macapagal-Arroyo as his successor, Justices Kapunan, Pardo, Buena, Ynares-Santiago and Sandoval-Gutierrez concurred in the result of the decision penned by Chief Justice Reynato S. Puno. 5 In 2006, Chief Justice Panganiban voted similarly in Republic v. Hong, 6 a case revisiting the mandatory requirement of a "credible witness" in a naturalization proceeding under Commonwealth Act 473. CDTSEI For another, there should be no point of confusion. A concurrence in the result is a favorable vote for the decision crafted by the ponente. It simply means that I agreed in the outcome or disposition of the case, but not necessarily on all the grounds given in the ponencia. I concurred with the weightier reasons stated in the majority decision to grant the petition for certiorari and to quash the Senate arrest and contempt order against petitioner, Secretary Neri. However, I did not share some of the reasoning of the ponente. If an unqualified vote of concurrence is allowed on a majority decision or dissenting opinion, there is no reason why a vote in the result should be treated differently, much less proscribed. DTcACa Now, on the merits of respondents' motion for reconsideration which merely restates their arguments against the petition focusing on executive privilege invoked on three (3) questions. 7 For the guidance of the Bench, the Bar and the Academe, I opt to correlate my position with those of the other Justices, with due respect to them. To be sure, Our decision and resolution in this case will continue to be the subject of legal scrutiny, public debate and academic discussion. I The proper basis of executive privilege in the Neri petition is only presidential communication privilege; executive privilege based on diplomacy and foreign relations is not valid for lack of specificity. Ang tamang batayan ng pribilehiyo ng Pangulo sa petisyon ni Neri ay ang pampangulong pribilehiyo sa komunikasyon; ang pampangulong pribilehiyo sa diplomasya at ugnayang panlabas ay di angkop dahil sa kawalan ng pagtitiyak. cDICaS The majority decision sustained executive privilege on two grounds: (a) under the presidential communication privilege; and (2) executive privilege on matters relating to diplomacy or foreign relations. 8 THAICD

I agree with the ponente that the three questions are covered by the presidential communication privilege. But I disagree that they are covered by executive privilege on matters affecting diplomacy or foreign relations. Ako'y sumasang-ayon sa ponente na ang tatlong katanungan ay saklaw ng pampangulong pribilehiyo sa komunikasyon. Subalit hindi ako sang-ayon na ang mga ito ay sakop ng pampangulong pribilehiyo sa diplomasya o ugnayang panlabas. The distinction between presidential communication privilege and executive privilege based on diplomacy and foreign relations is important because they are two different categories of executive privilege recognized by jurisprudence. 9 The first pertains to those communications between the President and her close advisors relating to official or state matters; the second are those matters that have a direct bearing on the conduct of our external affairs with other nations, in this case the Republic of China. EACIcH The two categories of executive privilege have different rationale. Presidential communication privilege is grounded on the paramount need for candor between the President and her close advisors. It gives the President and those assisting her sufficient freedom to interact without fear of undue public scrutiny. On the other hand, executive privilege on matters concerning our diplomatic or foreign relations is akin to state secret privilege which, when divulged, will unduly impair our external relations with other countries. 10 The distinction is vital because of the need for specificity in claiming the privilege. Senate of the Philippines v. Ermita 11 mandates that a claim of privilege must specify the grounds relied upon by the claimant. 12 The degree of specificity required obviously depends on the nature of the information to be disclosed. 13 ScaHDT As to presidential communication privilege, the requirement of specificity is not difficult to meet. This kind of privilege easily passes the test. As long as the subject matter pertains to a communication between the President and her close advisor concerning official or state matters, the requirement is complied with. There is no dispute that petitioner Neri is a close advisor of the President, being then the Chairman of the National Economic and Development Authority. The transaction involved the NBN-ZTE broadband deal, a government contract which is an official or state matter. Hence, the conversation between the President and petitioner Neri is covered by the presidential communication privilege. aIAcCH Of course, there is a presumption that every communication between the President and her close advisor pertains to an official or state matter. The burden is on the party seeking disclosure to prove that the communication is not in an official capacity. The fact of conversation is the trigger of the presidential communication privilege. There is no need to give specifics or particulars of the contents of the conversation

because that will obviously divulge the very matter which the privilege is meant to protect. It will be an illusory privilege if a more stringent standard is required. 14 In contrast, a relatively higher standard of specificity is required for a claim of executive privilege based on diplomacy or foreign relations. As in state secrets, this type of executive privilege is content based. 15 This means that the claim is dependent on the very content of the information sought to be disclosed. To adequately assess the validity of the claim, there is a need for the court, usually in closed session, to become privy to the information. This will enable the court to sufficiently assess whether or not the information claimed to be privileged will actually impair our diplomatic or foreign relations with other countries. It is the content of the information and its effect that trigger the privilege. To be sure, a generalized claim of privilege will not pass the more stringent test of specificity. TcEDHa In the case at bar, the letter 16 of Secretary Eduardo Ermita to the Senate dated November 15, 2007 asserting executive privilege contained a mere general allegation that the conversation between the President and petitioner Neri "might" impair our diplomatic relations with the Republic of China. There is no explanation how the contents of the conversation will actually impair our diplomatic relations. Absent sufficient explanation or specifics, We cannot assess the validity of the claim of executive privilege. Obviously, bare assertion without more will not pass the more stringent test of specificity. It is in this context that I agree with the dissenting justices 17 that the claim of privilege based on diplomacy or foreign relations must be struck down as devoid of basis. It may be noted that Justice Tinga is not also persuaded by the claim of executive privilege based on diplomacy or foreign relations. He said: Petitioner Neri also cites diplomatic and state secrets as basis for the claim of executive privilege, alluding for example to the alleged adverse impact of disclosure on national security and on our diplomatic relations with China. The argument hews closely to the state secrets privilege. The problem for petitioner Neri though is that unless he informs this Court the contents of his questioned conversations with the President, the Court would have no basis to accept his claim that diplomatic and state secrets would indeed be compromised by divulging the same in a public Senate hearing. AacCIT Indeed, if the claim of executive privilege is predicated on the particular content of the information, such as the state secrets privilege, which the claimant refuses to divulge, there is no way to assess the validity of the claim unless the court judging the case becomes privy to such information. If the claimant fails or refuses to divulge such information, I submit that the courts may not pronounce such information as privileged on content-based grounds, such as the state secrets privilege. Otherwise,

there simply would be no way to dispute such claim of executive privilege. All the claimant would need to do is to invoke the state secrets privilege even if no state secret is at all involved, and the court would then have no way of ascertaining whether the claim has been validly raised, absent judicial disclosure of such information. 18 IDCHTE There is qualified presumption of presidential communication privilege. Mayroong kwalipikadong pagpapalagay sa pampangulong pribilehiyo sa komunikasyon. American jurisprudence 19 bestows a qualified presumption in favor of presidential communication privilege. This means that the initial point is against disclosure of the contents of the communication between the President and her close advisors. The burden of proof is on the agency or body seeking disclosure to show compelling reasons to overcome the presumption. Respondent Senate Committees, however, insist that there should be no presumption in favor of presidential communication privilege. It banks on this Court's statement in Senate of the Philippines v. Ermita 20 that "the extraordinary character of the exemption (executive privilege) indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure". 21 It is argued that the dicta in Ermita is contrary and even antithetical 22 to the qualified presumption under American jurisprudence. Respondents likewise cite several provisions of the 1987 Philippine Constitution favoring public disclosure over secrecy 23 in its attempt to reverse the presumption. HEcIDa I cannot agree with respondents. The Court's statement in Ermita must be read in its proper context. It is merely a general statement in favor of public disclosure and against government secrecy. To be sure, transparency of government actions is a laudable virtue of a republican system of government such as ours. After all, a public office is a public trust. A well informed citizenry is essential in a democratic and republican government. But not all privileges or those that prevent disclosure of government actions are objectionable. Executive privilege is not an evil that should be thwarted and waylaid at every turn. Common sense and public policy require a certain degree of secrecy of some essential government actions. Presidential communication privilege is one of them. The President and her close advisor should be given enough leeway to candidly discuss official and state matters without fear of undue public scrutiny. The President cannot effectively govern in a fishbowl where her every action is dissected and scrutinized. Even the Senate itself enjoys the same privilege in the discharge of its constitutional functions. Internal workings of the Senate Committees, which include deliberations between the Senators and their staffs in crafting a bill, are generally beyond judicial scrutiny. ATCEIc

The Court's dicta in Senate of the Philippines v. Ermita should not be unduly emasculated as basis for a general argument in favor of full disclosure of all governmental actions, much less as foundation for a presumption against presidential communication privilege. To my mind, it was not the intention of this Court to reverse the qualified presumption of presidential communication under American jurisprudence. Quite the contrary, the Court in Ermita, by citing the case of Almonte v. Vasquez, adopted the qualified presumption of presidential communication privilege. Almonte quoted several American cases which favored the qualified presumption of presidential communication privilege. 24 As discussed by Chief Justice Reynato Puno in his dissenting opinion: A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al. v. Nixon in the D.C. Court of Appeals, as well as subsequent cases, all recognize that there is a presumptive privilege in favor of presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of presidential communications. HaTSDA The statement in Senate v. Ermita that the "extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure" must therefore be read to mean that there is a general disfavor of government privileges as held in In Re Subpoena for Nixon, especially considering the bias of the 1987 Philippine Constitution towards full public disclosure and transparency in government. In fine, Senate v. Ermita recognized the presidential communications privilege in U.S. v. Nixon and the qualified presumptive status that the U.S. High Court gave that privilege. Thus, respondent Senate Committees' argument that the burden is on petitioner to overcome a presumption against executive privilege cannot be sustained. 25 CHTcSE At any rate, it is now settled that there is a qualified presumption in favor of presidential communication privilege. The majority decision 26 expressly recognized the presumption. Even Justices Ynares-Santiago 27 and Carpio, 28 in their separate dissenting opinions, agree that the presumption exists. Justice Carpio Morales 29 presented a different formulation of the privilege, but she nevertheless acknowledges the presumption. In other words, the three questions directed to petitioner are presumptively privileged because they pertain to the contents of his conversation with the President. Sa madaling salita, ang tatlong tanong sa petisyoner ay ipinapalagay na may angking pribilehiyo dahil ito'y tungkol sa usapan nila ng Pangulo. Presidential communication privilege is not absolute; it is rebuttable.

Ang pampangulong pribilehiyo sa komunikasyon ay hindi ganap; ito'y maaaring salungatin. The fact that presidential communication is privileged is not the end of the matter. It is merely the starting point of the inquiry. In Senate of the Philippines v. Ermita, this Court stated: That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. 30 TAESDH All Justices 31 agree that the presumption in favor of presidential communication privilege is rebuttable. The agency or body seeking disclosure must present compelling reasons to overcome the presumption. Justice Nachura stated the delicate balancing test in this manner: Because the foundation of the privilege is the protection of the public interest, any demand for disclosure of information or materials over which the privilege has been invoked must, likewise, be anchored on the public interest. Accordingly, judicial recognition of the validity of the claimed privilege depends upon "a weighing of the public interest protected by the privilege against the public interest that would be served by disclosure in a particular case". While a "demonstrated specific need" for material may prevail over a generalized assertion of privilege, whoever seeks the disclosure must make "a showing of necessity sufficient to outweigh the adverse effects the production would engender". 32 DISTcH The Senate power of investigation in aid of legislation is different from its oversight function. Ang kapangyarihan ng Senado na magsiyasat kaakibat ng tungkulin sa paggawa ng batas ay kaiba sa gawain nito ng pagsubaybay. The context or procedural setting in which executive privilege is claimed is vital in the courts' assessment of the privilege. Since executive privilege has constitutional underpinnings, the degree of proof required to overcome the presumption must likewise have constitutional support. Here, the context or setting of the executive privilege is a joint Senate Committee 33 investigation in aid of legislation. SEAHID There is a statement in the majority decision that respondent Senate Committees were exercising their oversight function, 34 instead of their legislative powers 35 in asking the three questions to Secretary Neri. 36 The characterization of the Senate power as one in the exercise of its oversight, instead of legislative, function has severe repercussions because of this Court's dicta in Ermita that the Senate's oversight function "may be facilitated by compulsory process only to the extent that it

is performed in pursuit of legislation". In exercising its oversight function, the Senate may only request the appearance of a public official. In contrast, it may compel appearance when it is exercising its power of investigation in aid of legislation. On this score, I part way with the majority decision. To be sure, it is difficult to draw a line between the oversight function and the legislative function of the Senate. Nonetheless, there is sufficient evidence on record that the Senate Committees were actually exercising their legislative power rather than their oversight function in conducting the NBN-ZTE investigation. Various resolutions, 37 privilege speeches 38 and bills 39 were filed in the Senate in connection with the NBN-ZTE contract. Petitioner's counsel, Atty. Antonio Bautista, even concedes that the investigation conducted by the Senate Committees were in aid of legislation. 40 SaCDTA While there is a perception in some quarters that respondents' investigation is being carried too far or for some other motives, We cannot but accord respondents the benefit of the doubt. The principle of separation of powers requires that We give due respect to the Senate assertion that it was exercising its legislative power in conducting the NBN-ZTE investigation. It is not for this Court to challenge, much less second guess, the purpose of the NBN-ZTE investigation or the motives of the Senators in probing the NBN-ZTE deal. We must presume a legislative purpose from the investigation because of the various pending bills filed in the Senate. At any rate, it is settled that the improper motives of some Senators, if any, will not vitiate the Senate's investigation as long as the presumed legislative purpose is being served by the work of the Senate Committees. 41 Rebutting the presumption: executive privilege is honored in civil, but not in criminal proceedings. Ang pribilehiyo ay iginagalang sa kasong sibil, ngunit hindi sa kasong kriminal. Given that a claim of presidential communication privilege was invoked by Secretary Neri in a Senate investigation in aid of legislation, it is necessary to examine how a similar claim of executive privilege fared in other contexts, particularly in criminal and civil proceedings, in order to gain insight on the evidence needed to rebut the qualified presumption. TaDIHc There is a consensus among the Justices of this Court that a claim of executive privilege cannot succeed in a criminal proceeding. The reason is simple. The right of the accused to due process of law requires nothing less than full disclosure. When vital information that may exculpate the accused from a crime is withheld from the courts, the wheels of justice will be stymied and the constitutional right of the accused to due process of law becomes illusory. It is the crucial need for the information covered by the privilege and the dire consequences of nondisclosure on the discharge of an essential judicial function which trumps executive privilege.

The leading case on executive privilege in a criminal proceeding is U.S. v. Nixon. 42 It involved a sub poena duces tecum to then United States President Richard Nixon and his staff to produce tape recordings and documents in connection with the Watergate scandal. Ruling that executive privilege cannot prevail in a criminal proceeding, the Supreme Court of the United States stated: TSacAE The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of criminal prosecution. On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal case. 43 acHTIC I hasten to point out, however, that in this case, there is yet no criminal proceeding, hence, the vital ruling on Nixon does not square with Neri. Again, in contrast, executive privilege is generally honored in a civil proceeding. The need for information in a civil case is not as significant or does not have the same stakes as in a criminal trial. Unlike the accused in a criminal trial, the defendant in a civil case will not lose his life or liberty when information covered by executive privilege is left undisclosed to the courts. Moreover, there is the exacting duty of the courts to prove the guilt of the accused beyond reasonable doubt. But mere preponderance of evidence is required in a civil case to deliver a verdict for either party. That burden may be hurdled even without a full disclosure of information covered by the executive privilege. ADEHTS The leading case on executive privilege in a civil proceeding is Cheney v. US District Court of the District of Columbia. 44 It involved discovery orders against Vice President Cheney and other federal officials and members of the National Energy Policy Development Group. Differentiating the earlier case of Nixon, the Supreme Court of the United States in Cheney held that the claim of executive privilege will be honored in a civil proceeding because it does not share the same "constitutional dimension" as in a criminal trial, thus:

The Court of Appeals dismissed these separation of powers concerns. Relying on United States v. Nixon, it held that even though respondents' discovery requests are overbroad and "go well beyond FACA's requirements", the Vice- and his former colleagues on the NEPDG "shall bear the burden" of invoking privilege with narrow specificity and objecting to the discovery requests with "detailed precision". In its view, this result was required by Nixon's rejection of an "absolute, unqualified presidential privilege of immunity from judicial process under all circumstances". . . . SIcCEA The analysis, however, overlooks fundamental differences in the two cases. Nixon involves the proper balance between the Executive's interest in the confidentiality of its communication and the "constitutional need for production of relevant evidence in a criminal proceeding". The Court's decision was explicit that it was "not concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials". DCScaT The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. . . . In light of the "fundamental" and "comprehensive" need for "every man's evidence" in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth". The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to the production of relevant evidence in civil proceedings does not have the same "constitutional dimensions". 45 Nixon and Cheney present a stark contrast in the court's assessment of executive privilege in two different procedural settings. While the privilege was honored in a civil proceeding, it was held unavailing in a criminal trial. It is arguable that in both cases, there is a compelling need for the information covered by the privilege. After all, the courts may be unable to deliver a fair verdict without access to the information covered by the privilege. TCEaDI I submit that the distinction lies on the effect of non-disclosure on the efficient discharge of the court's judicial function. The court may not adjudge the guilt of the accused beyond reasonable doubt in a criminal trial without the information covered by the privilege. The information may, in fact, exculpate the accused from the crime. In contrast, the court may render judgment in a civil case even absent the information covered by the privilege. The required burden of proof may still be hurdled even without access to the information.

In short, if the body or agency seeking disclosure may efficiently discharge its constitutional duty even without access to the information, the privilege will be honored. If, on the other hand, the privilege substantially impairs the performance of that body or agency's constitutional duty, the information covered by the privilege will be disclosed to enable that agency to comply with its constitutional duty. aTHASC There are two significant tests for rebutting the qualified presumption of presidential communication privilege. May dalawang makahulugang panukat sa pagsalungat ng kwalipikadong pagpapalagay sa pampangulong pribilehiyo sa komunikasyon. The majority decision ruled that the qualified presumption of presidential communication privilege may be overturned only by a showing of public need by the branch seeking access to conversation. 46 SCHcaT Chief Justice Puno opines that the test must center on the efficient discharge of the constitutional functions of the President vis--vis the Senate. Using the "function impairment test", the Court weighs how the disclosure of the withheld information would impair the President's ability to perform her constitutional duties more than nondisclosure would impair the other branch's ability to perform its constitutional functions. 47 The test entails an initial assessment of the strength of the qualified presumption which shall then be weighed against the adverse effects of nondisclosure on the constitutional function of the agency seeking the information. HEASaC Justice Carpio Morales agrees that the proper test must focus on the effect of nondisclosure on the discharge of the Senate's constitutional duty of enacting laws, thus: Thus, a government agency that seeks to overcome a claim of the presidential communications privilege must be able to demonstrate that access to records of presidential conversations, or to testimony pertaining thereto, is vital to the responsible performance of that agency's official functions. 48 ASETHC In his separate concurring opinion, Justice Tinga highlights that the "claim of executive privilege should be tested against the function of the legislative inquiry, which is to acquire insight and information for the purpose of legislation. He simplifies the issue in this manner: would the divulgence of the sought-after information impede or prevent the Senate from enacting legislation? 49 Justice Nachura tersely puts it that to hurdle the presumption the Senate must show "how and why the desired information "is demonstrably critical to the responsible fulfillment of the Committees' functions". 50 Justice Consuelo Ynares-Santiago, on the other hand, asserts that the proper test should not only be confined to the consequences of disclosure or non-disclosure on

the constitutional functions of the President and the Senate, but must involve a holistic assessment of "public interest". She notes that "grave implications on public accountability and government transparency" are factors that must be taken into account in resolving a claim of executive privilege. 51 CcADHI The seemingly different tests submitted by the concurring and dissenting justices are but motions of the same type of balancing act which this Court must undertake in resolving the issue of executive privilege. The "public interest" test propounded by Justice Ynares-Santiago emphasizes the general basis in resolving the issue, which is public interest. The "balancing test" espoused by the majority justices and Justice Carpio Morales, and the "function impairment test" of Chief Justice Puno, on the other hand, underscore the main factor in resolving the conflict, which is to assess the consequence of non-disclosure on the effective discharge of the constitutional function of the branch or agency seeking the information. TSEHcA The "balancing test" and the "function impairment test" approximate the test applied by the Supreme Court of the United States in Nixon and Cheney. An analysis of Nixon and Cheney reveals that the test must be anchored on two points. One, the compelling need for the information covered by the privilege by the body or agency seeking disclosure. Two, the effect of non-disclosure on the efficient discharge of the constitutional function of the body or agency seeking the information. aIcDCA Both requisites must concur although the two may overlap. If there is a compelling need for the information, it is more likely that the agency seeking disclosure cannot effectively discharge its constitutional function without the required information. Disclosure is precisely sought by that agency in order for it to effectively discharge its constitutional duty. But it may also be true that there is a compelling need for the information but the agency or body seeking disclosure may still effectively discharge its constitutional duty even without the information. The presence of alternatives or adequate substitutes for the information may render disclosure of the information unnecessary. The starting point is against disclosure of the contents of the communication between the President and her close advisors because of the qualified presumption of presidential communication privilege. The burden is on the party seeking disclosure to prove a compelling need for the information. But mere compelling need is insufficient. The branch or agency seeking the information must also show that it cannot effectively discharge its constitutional function without access to the information covered by the privilege. HDcaAI The degree of impairment of the constitutional function of the agency seeking disclosure must be significant or substantial as to render it unable to efficiently discharge its constitutional duty. In Nixon, the harm occasioned by non-disclosure was held to "cut deeply into the guarantee of due process of law and gravely impair

the basic function of the courts". In contrast, the harm in a civil proceeding was held to be only minor or insignificant, which rendered disclosure unnecessary. Application of the twin tests paglalapat ng kambal na panukat Applying the same dual tests, the qualified presumption of the presidential communication privilege may be rebutted only upon showing by the Senate of a compelling need for the contents of the conversation between the President and Secretary Neri. The Senate must also prove that it cannot effectively discharge its legislative function without the information covered by the privilege. ATDHSC The presidential communication privilege was invoked in a joint Senate investigation in aid of legislation. The main purpose of the NBN-ZTE investigation is to aid the Senators in crafting pertinent legislation. The constitutional duty involved in this case is the lawmaking function of the Senate. Using the function impairment test, Chief Justice Puno concludes that the Senate had adequately shown a compelling need for the contents of the conversation between the President and Secretary Neri. The Chief Justice points out that there is no effective substitute for the information because it provides the factual basis "in crafting specific legislation pertaining to procurement and concurring in executive agreements". 52 TacADE Justice Carpio Morales also observes that the Senate had adequately presented a compelling need for the information because it is "apparently unavailable anywhere else". 53 Justice Carpio Morales holds "it would be unreasonable to expect respondent Committees to merely hypothesize on the alternative responses and come up with legislation on that basis". 54 I take a different view. To my mind, the Senate failed to present a case of compelling need for the information covered by the privilege. It must be borne in mind that Secretary Neri is only one of the many witnesses in the NBN-ZTE investigation. In fact, he had already testified lengthily for eleven (11) hours. Numerous resource persons and witnesses have testified before and after him. The list includes Rodolfo "Jun" Lozada, Jr., Jose de Venecia IV, Chairman Benjamin Abalos, technical consultants Leo San Miguel and Dante Madriaga. To date, the Senate Committees had conducted a total of twelve hearings on the NBN-ZTE investigation. DACTSa Given the sheer abundance of information, both consistent and conflicting, I find that the Senate Committees have more than enough inputs and insights which would enable its members to craft proper legislation in connection with its investigation on the NBN-ZTE deal. I do not see how the contents of the conversation between Secretary Neri and the President, which is presumptively privileged, could possibly add more light to the law-making capability of the Senate. At the most, the conversation will only bolster what had been stated by some witnesses during the Senate investigation.

I do not share the opinion that the entire talk between the President and Secretary Neri is essential because it provides the factual backdrop in crafting amendments to the procurement laws. The testimony of numerous witnesses and resource persons is already sufficient to provide a glimpse, if not a fair picture, of the whole NBN-ZTE contract. The Senators may even assume, rightly or wrongly, based on the numerous testimonies, that there was an anomaly on the NBN ZTE contract and craft the necessary remedial legislation. AIDTHC Unlike in a criminal trial, this is not a case where a precise reconstruction of past events is essential to the efficient discharge of a constitutional duty. The Senate is not a court or a prosecutorial agency where a meticulous or painstaking recollection of events is essential to determine the precise culpability of an accused. The Senate may still enact laws even without access to the contents of the conversation between the President and Secretary Neri. As correctly noted by Justice Nachura, "legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events" and that "it is not uncommon for some legislative measures to be fashioned on the strength of certain assumptions that may have no solid factual precedents". 55 Even granting that the Senate had presented a case of compelling need for the information covered by the executive privilege, the Senate nonetheless failed to prove the second element of "substantial impairment" of its constitutional lawmaking function. It is hard to imagine how an affirmative or negative answer to the three questions posed to petitioner Neri would hinder the Senate from crafting a law amending the Build Operate and Transfer (BOT) Law or the Official Development and Assistance (ODA) Act. The Senate may also cobble a law subjecting executive agreements to Senate concurrence even without access to the conversation between the President and Secretary Neri. HcDaAI In fine, the qualified presumption in favor of presidential communication privilege was not successfully rebutted. First, the Senate failed to prove a compelling need for the information covered by the privilege. Second, the constitutional function of the Senate to enact laws will not be substantially impaired if the information covered by the privilege is left undisclosed. For these twin reasons, I concur with the ponente's decision honoring presidential communication privilege in the NBN-ZTE Senate investigation. HCITcA Gamit ang panukat ng "balancing test" at "function impairment test", matibay ang aking pasiya na hindi matagumpay na nasalungat ang kwalipikadong pagpapalagay (qualified presumption) sa pampangulong pribilehiyo sa komunikasyon. Executive privilege and crime pampangulong pribilehiyo at krimen The Senate also asserts that executive privilege cannot be used to conceal a crime. It is claimed that the conversation between the President and Secretary Neri pertained

to an attempted bribery by then COMELEC chairman Benjamin Abalos to Secretary Neri. The alleged crime committed by Chairman Abalos will be shielded and concealed if the content of the conversation between the President and Secretary Neri is left undisclosed. It is also claimed that the President herself and his husband may have been complicit in the commission of a crime in approving the NBN-ZTE contract. That executive privilege cannot be invoked to conceal a crime is well-settled. All Justices of this Court agree on that basic postulate. The privilege covers only the official acts of the President. It is not within the sworn duty of the President to hide or conceal a crime. 56 Hence, the privilege is unavailing to cover up an offense. ADScCE But We cannot lightly assume a criminal conduct. In the same manner that We give due respect to the Senate when it asserts that it is conducting an investigation in aid of legislation, so too must We accord the same level of courtesy to the President when she asserts her presidential communication privilege. It must be stressed that the Senate is conducting the NBN-ZTE investigation only in aid of legislation. Its main goal is to gain insights on how to better craft pertinent laws. Its investigation is not, ought not to be, a fishing expedition to incriminate the President or for other purpose. CSaHDT The Senate is not a prosecutorial agency. That duty belongs to the Ombudsman and the Department of Justice. Or the House of Representatives if impeachment is desired. That the concerned Senators or other sectors do not trust these institutions is altogether another matter. But the Court should not be pressured or faulted if it declines to deviate from the more specific norm ordained by the Constitution and the rule of law. Much has been said about the need to ferret out the truth in the reported anomaly on the aborted NBN-ZTE broadband deal. But can the truth be fairly ascertained in a Senate investigation where there is no rule of evidence? Where even double hearsay testimony is allowed and chronicled by media? Where highly partisan politics come into play? May not the true facts be unveiled through other resource persons, including a namesake (Ruben Caesar Reyes)? DaTISc II On the contempt and arrest order ang order ng pagsuway at pag-aresto On the second issue, the majority decision invalidated the arrest and contempt order against petitioner Neri on five (5) counts, namely: (a) valid invocation of executive privilege; (b) lack of publication of the Senate Rules of Procedure; (c) failure to furnish petitioner Neri with advance list of questions and proposed statutes which prompted its investigation; (d) lack of majority vote to cite for contempt; and (e) arbitrary and

precipitate issuance of the contempt order. The first and the last are interrelated. STHAaD I concur with the majority decision but on a single ground: valid invocation of executive privilege. A. Because of valid invocation of executive privilege, the Senate order of contempt and arrest is baseless, hence, invalid. Dahil sa pasiya ng nakakarami sa Hukuman na balido ang imbokasyon ni Neri ng pampangulong pribilehiyo, ang order ng Senado sa kanyang pagsuway at pag-aresto ay walang batayan kaya hindi balido. The Senate declared petitioner Neri in contempt because he refused to divulge the full contents of his conversation with the President. It is his refusal to answer the three questions covered by the presidential communication privilege which led to the issuance of the contempt and later the arrest order against him. DcSEHT I note that the Senate order of contempt against Secretary Neri stated as its basis his failure to appear in four slated hearings, namely: September 18, 2007, September 20, 2007, October 25, 2007 and November 20, 2007. 57 But Secretary Neri attended the Senate hearing on September 26, 2007 where he was grilled for more than eleven (11) hours. The October 25, 2007 hearing was moved to November 20, 2007 when the Senate issued a subpoena ad testificandum to Secretary Neri to further testify on the NBN-ZTE deal. Before the slated November 20 hearing, Secretary Ermita wrote to the Senate requesting it to dispense with the testimony of Secretary Neri on the ground of executive privilege. The Senate did not act on the request of Secretary Ermita. Secretary Neri did not attend the November 20, 2007 hearing. IHCSET The Senate erroneously cited Secretary Neri for contempt for failing to appear on the September 18 and 20, 2007 hearings. His failure to attend the two hearings is already a non-issue because he did attend and testified in the September 26, 2007 hearing. If the Senate wanted to cite him for contempt for his absence during the two previous hearings, it could have done so on September 26, 2007, when he testified in the Senate. The Senate cannot use his absence in the September 18 and 20 hearings as basis for citing Secretary Neri in contempt. The main reason for the contempt and arrest order against Secretary Neri is his failure to divulge his conversation with the President. As earlier discussed, We ruled that Secretary Neri correctly invoked presidential communication privilege. Since he cannot be compelled by the Senate to divulge part of his conversation with the President which included the three questions subject of the petition for certiorari, the contempt and arrest order against him must be declared invalid as it is baseless.

Petitioner, however, may still be compelled by the Senate to testify on other matters not covered by the presidential communication privilege. DIESHT B. The Senate does not need to republish its Rules of Procedure Governing Inquiries in Aid of Legislation. Hindi kailangan na muling ipalathala ng Senado ang Tuntunin sa Prosidyur sa Pagsisiyasat Tulong sa Paggawa ng Batas. Justice Leonardo-de Castro sustained the position of the Office of the Solicitor General that non-publication of the Senate Rules of Procedure is fatal to the contempt and arrest order against Secretary Neri, thus: We find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure". We quote the OSG's explanation: "The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm." 58 CaHcET Justice Carpio agreed with Justice Leonardo-de Castro. In his separate opinion, Justice Carpio held that the Senate is not a continuing body under the 1987 Constitution because only half of its members continue to the next Congress, hence, it does not have a quorum to do business, thus: The Constitution requires that the Legislature publish its rules of procedure on the conduct of legislative inquiries in aid of legislation. There is no dispute that the last publication of the Rules of Procedure of the Senate Governing the Inquiries in Aid of Legislation was on 1 December 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. There is also no dispute that the Rules of Procedure have not been published in newspapers of general circulation during the current 14th Congress. However, the Rules of Procedure have been published continuously in the website of the Senate since at least the 13th Congress. In addition, the Senate makes the Rules of Procedure available to the public in pamphlet form. AEDISC In Arnault v. Nazareno, decided under the 1935 Constitution, this Court ruled that "the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every

two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation". To act as a legislative body, the Senate must have a quorum, which is a majority of its membership. Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body. The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business". Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators. cHCSDa The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation", precluding any other form of publication. Publication in accordance with Taada is mandatory to comply with the due process requirement because the Rules of Procedure put a person's liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate. TSacAE Due process requires that "fair notice" be given to citizens before rules that put their liberty at risk take effect. The failure of the Senate to publish its Rules of Procedure as required in Section 22, Article VI of the Constitution renders the Rules of Procedure void. Thus, the Senate cannot enforce its Rules of Procedure. 59 Chief Justice Puno, on the other hand, points out that the Senate has been considered a continuing body by custom, tradition and practice. The Chief Justice cautions on the far-reaching implication of the Senate Rules of Procedure being declared invalid and unenforceable. He says: The Senate Rules of Procedure Governing Inquiries in Aid of Legislation is assailed as invalid allegedly for failure to be re-published. It is contended that the said rules should be re-published as the Senate is not a continuing body, its membership changing every three years. The assumption is that there is a new Senate after every

such election and it should not be bound by the rules of the old. We need not grapple with this contentious issue which has far-reaching consequences to the Senate. The precedents and practice of the Senate should instead guide the Court in resolving the issue. For one, the Senators have traditionally considered the Senate as a continuing body despite the change of a part of its membership after an election. It is for this reason that the Senate does not cease its labor during the period of such election. Its various Committees continue their work as its officials and employees. For another, the Rules of the Senate is silent on the matter of re-publication. Section 135, Rule L of the Rules of the Senate provides that, "if there is no Rule applicable to a specific case, the precedents of the Legislative Department of the Philippines shall be resorted to . . . ." It appears that by tradition, custom and practice, the Senate does not re-publish its rules especially when the same has not undergone any material change. In other words, existing rules which have already undergone publication should be deemed adopted and continued by the Senate regardless of the election of some new members. Their re-publication is thus an unnecessary ritual. We are dealing with internal rules of a co-equal branch of government and unless they clearly violate the Constitution, prudence dictates we should be wary of striking them down. The consequences of striking down the rules involved in the case at bar may spawn serious and unintended problems for the Senate. 60 IHCDAS True it is that, as the Constitution mandates, the Senate may only conduct an investigation in aid of legislation pursuant to its duly published rules of procedure. Without publication, the Senate Rules of Procedure Governing Inquiries in Aid of Legislation is ineffective. Thus, unless and until said publication is done, the Senate cannot enforce its own rules of procedure, including its power to cite a witness in contempt under Section 18. But the Court can take judicial notice that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation was published on August 20 and 21, 1992 in the Philippine Daily Inquirer and Philippine Star during the 9th Congress. The Senate again published its said rules on December 1, 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. That the Senate published its rules of procedure twice more than complied with the Constitutional requirement. HCEcaT I submit that the Senate remains a continuing body under the 1987 Constitution. That the Senate is a continuing body is premised on the staggered terms of its members, the idea being to ensure stability of governmental policies. This is evident from the deliberations of the framers of the Constitution, thus: "MR RODRIGO. . . . I would like to state that in the United States Federal Congress, the term of the members of the Lower House is only two years. We have been used to a term of four years here but I think three years is long enough. But they will be allowed to run for

reelection any number of times. In this way, we remedy the too frequent elections every two years. We will have elections every three years under the scheme and we will have a continuing Senate. Every election, 12 of 24 Senators will be elected, so that 12 Senators will remain in the Senate. In other words, we will have a continuing Senate. 61 CHTAIc xxx xxx xxx

MR DAVIDE. This is just a paragraph of that section that will follow what has earlier been approved. It reads: "OF THE SENATORS ELECTED IN THE ELECTION IN 1992, THE FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF VOTES SHALL SERVE FOR SIX YEARS AND THE REMAINING TWELVE FOR THREE YEARS." This is to start the staggering of the Senate to conform to the idea of a continuing Senate. THE PRESIDING OFFICER (Mr. Rodrigo). What does the Committee say? MR SUAREZ. The Committee accepts the Davide proposal, Mr. Presiding Officer. 62 The Senate does not cease to be a continuing body merely because only half of its members continue to the next Congress. To my mind, even a lesser number of Senators continuing into the next Congress will still make the Senate a continuing body. The Senate must be viewed as a collective body. It is an institution quite apart from the Senators composing it. The Senate as an institution cannot be equated to its present occupants. It is indivisible. It is not the sum total of all sitting Senators at any given time. Senators come and go but the very institution of the Senate remains. It is this indivisible institution which should be viewed as continuing. DCScaT The argument that the Senate is not a continuing body because it lacks quorum to do business after every midterm or presidential elections is flawed. It does not take into account that the term of office of a Senator is fixed by the Constitution. There is no vacancy in the office of outgoing Senators during midterm or presidential elections. Article VI, Section 4 of the 1987 Constitution provides: The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. The term of a Senator starts at noon of June 30 next following their election and shall end before noon of June 30 six years after. The constitutional provision aims to prevent a vacuum in the office of an outgoing Senator during elections, which is fixed under the Constitution unless changed by law on the second Monday of May, 63 until June 30 when the Senators-elect assume their office. There is no vacuum created because at the time an outgoing Senator's term ends, the term of a Senator-elect begins. TEDHaA

The same principle holds true for the office of the President. A president-elect does not assume office until noon of June 30 next following a presidential election. An outgoing President does not cease to perform the duties and responsibilities of a President merely because the people had chosen his/her new successor. Until her term expires, an outgoing President has the constitutional duty to discharge the powers and functions of a President unless restricted 64 by the Constitution. In fine, the Senate is a continuing body as it continues to have a full or at least majority membership 65 even during elections until the assumption of office of the Senators-elect. The Senate as an institution does not cease to have a quorum to do business even during elections. It is to be noted that the Senate is not in session during an election until the opening of a new Congress for practical reasons. This does not mean, however, that outgoing Senators cease to perform their duties as Senators of the Republic during such elections. When the President proclaims martial law or suspends the writ of habeas corpus, for example, the Congress including the outgoing Senators are required to convene if not in session within 24 hours in accordance with its rules without need of call. 66 cSTHaE The Constitutional provision requiring publication of Senate rules is contained in Section 21, Article VI of the 1987 Constitution, which reads: The Senate or the House of Representatives or any of its respective Committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The above provision only requires a "duly published" rule of procedure for inquiries in aid of legislation. It is silent on republication. There is nothing in the constitutional provision that commands that every new Congress must publish its rules of procedure. Implicitly, republication is necessary only when there is an amendment or revision to the rules. This is required under the due process clause of the Constitution. AIECSD The Senate in the 13th Congress caused the publication of the Rules of Procedure Governing Inquiries in Aid of Legislation. The present Senate (14th Congress) adopted the same rules of procedure in the NBN-ZTE investigation. It does not need to republish said rules of procedure because it is not shown that a substantial amendment or revision was made since its last publication that would affect the rights of persons appearing before it. On a more practical note, there is little to be gained in requiring a new Congress to cause the republication of the rules of procedure which has not been amended or revised. The exercise is simply a waste of government funds. Worse, it unduly burdens and hinders the Senate from discharging its constitutional duties. Publication takes time and during the interregnum, it cannot be gainsaid that the Senate is barred or restricted from conducting an investigation in aid of legislation. aEACcS

I agree with the Chief Justice that this Court must be wary of the far-reaching consequences of a case law invalidating the Senate rules of procedure for lack of republication. Our ruling in this petition will not only affect the NBN-ZTE investigation, but all other Senate investigations conducted under the 10th, 11th, 12th, and the present 14th Congress, for which no republication of the rules has been done. These investigations have been the basis of several bills and laws passed in the Senate and the House of Representatives. Putting a doubt on the authority, effectivity and validity of these proceedings is imprudent and unwise. This Court should really be cautious in making a jurisprudential ruling that will unduly strangle the internal workings of a coequal branch and needlessly burden the discharge of its constitutional duty. IECcAT C. The Senate failed to furnish petitioner with a list of possible questions and needed statutes prompting the inquiry. But the lapse was sufficiently cured. Nagkulang ang Senado na bigyan ang petisyuner ng listahan ng mga itatanong sa kanya at mga panukalang batas na nagtulak sa pagsisiyasat. Subalit ang kakulangan ay nalunasan ng sapat. In Senate v. Ermita, 67 the Court issued a guideline to the Senate to furnish a witness, prior to its investigation, an advance list of proposed questions and possible needed statutes which prompted the need for the inquiry. The requirement of prior notice will dispel doubts and speculations on the real nature and purpose of its investigation. Records show the Senate failed to comply with that guideline. It did not furnish petitioner Neri an advance list of the required questions and bills which prompted the NBN-ZTE investigation. Thus, the Senate committed a procedural error. The majority decision held that the procedural error invalidated the contempt and arrest order against petitioner Neri, thus: HSDIaC . . . Respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the "possible needed statute which prompted the need for the inquiry", along with "the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated demands, respondent Committees did not send him an advance list of questions. 68 Nevertheless, I disagree with the majority on this point. I do not think that such procedural lapse per se has a substantial effect on the resolution of the validity of the Senate contempt and arrest order. The defect is relatively minor when viewed in light of the serious issues raised in the NBN-ZTE investigation. More importantly, the procedural lapse was sufficiently cured when petitioner was apprised of the context of the investigation and the pending bills in connection with the NBN-ZTE inquiry when he appeared before the respondent Senate committees. CcaDHT

If this were a case of a witness suffering undue prejudice or substantial injury because of unfair questioning during a Senate investigation, I would not hesitate to strike down a contempt and arrest order against a recalcitrant witness. But this is not the situation here. Petitioner neither suffered any undue prejudice nor substantial injury. He was not ambushed by the Senators with a barrage of questions regarding a contract in which he had little or no prior knowledge. Quite the contrary, petitioner knew or ought to know that the Senators will query him on his participation and knowledge of the NBN-ZTE deal. This was clear from the letter of the Senate to petitioner requesting his presence and attendance during its investigation. At any rate, this case should serve as an eye-opener to the Senate to faithfully comply with Our directive in Ermita. To prevent future claims of unfair surprise and questioning, the Senate, in its future investigations, ought to furnish a witness an advance list of questions and the pending bills which prompted its investigation. SCETHa D. There was a majority vote under Section 18 of the pertinent Senate Rules of Procedure. Nagkaroon ng boto ng nakararami ayon sa Seksiyon 18 ng nauukol na Tuntunin ng Senado. Section 18 of the Senate Rules Governing Inquiries in Aid of Legislation provides: Sec. 18. Contempt. The Committee, by a vote of a majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively. A contempt of the Committee shall be deemed a contempt of the Senate. Such witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself of that contempt. EHIcaT The majority decision held that the required majority vote under Section 18 of the said Senate Rules of Procedure was not met. In her ponencia, Justice Leonardo-de Castro notes that members of the Senate Committees who were absent during the Senate investigations were made to sign the contempt order. The ponente cites the transcript of records during the Senate investigation where Senator Aquilino Pimentel raised the issue to Senator Alan Peter Cayetano during interpellation, thus: THE CHAIRMAN (SEN. CAYETANO, A). May I recognize the Minority Leader and give him the floor, Senator Pimentel. SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead

committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called "consultation" that inevitably will have to take place if we follow the premise that has been explained. cCESTA So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO, A.). Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "The Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any order of the Committee." So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law. 69 HCaEAT Justice Arturo Brion particularly agrees with the ponente. In his separate concurring opinion, Justice Brion cites the admission of Senators Francis Pangilinan and Rodolfo Biazon during the Oral Argument that the required majority vote under Section 18 was not complied with, thus: That the Senate committees engaged in shortcuts in ordering the arrest of Neri is evident from the record of the arrest order. The interpellations by Justices Tinga and Velasco of Senators Rodolfo G. Biazon (Chair of the Committee on National Defense and Security) and Francis N. Pangilinan (Senate Majority Leader) yielded the information that none of the participating Committees (National Defense and Security, Blue Ribbon, and Trade and Commerce) registered enough votes to approve the citation of contempt and the arrest order. An examination of the Order dated 30 January 2008 shows that only Senators Alan Peter Cayetano, Aquino III, Legarda, Honasan and Lacson (of 17 regular members) signed for the Blue Ribbon Committee; only Senators Roxas, Pia Cayetano, Escudero and Madrigal for the Trade and Commerce Committee (that has 9 regular members); and only Senators Biazon, and

Pimentel signed for the National Defense and Security Committee (that has 19 regular members). Senate President Manny Villar, Senator Aquilino Pimentel as Minority Floor Leader, Senator Francis Pangilinan as Majority Floor Leader, and Senator Jinggoy Ejercito Estrada as Pro Tempore, all signed as ex-officio members of the Senate standing committees but their votes, according to Senator Biazon's testimony, do not count in the approval of committee action. 70 DIAcTE Chief Justice Puno has a different view. Citing the Certification 71 issued by the Senate's Deputy Secretary for Legislation, the Chief Justice concludes that the required majority vote was sufficiently met. The Chief Justice adds that even if the votes of the ex officio members of the Senate Committee were counted, the majority requirement for each of the respondent Senate Committees was still satisfied. 72 I share the view of the Chief Justice on this point. The divergence of opinion between the majority decision and Chief Justice Puno pertains to the voting procedure of the Senate. It involves two issues: (a) whether or not the vote to cite a witness for contempt under Section 18 of the Senate Rules requires actual physical presence during the Senate investigation; and (b) whether or not the votes of the ex officio members of respondent Senate Committees should be counted under Section 18 of the Senate Rules. cADaIH The twin issues involve an interpretation of the internal rules of the Senate. It is settled that the internal rules of a co-equal branch are within its sole and exclusive discretion. Section 16, Article VI of the 1987 Constitution provides: Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds of all its members, suspend or expel a member. A penalty of suspension, when imposed, shall not exceed sixty days. In Avelino v. Cuenco, 73 this Court by a vote of 6-4 refused to assume jurisdiction over a petition questioning the election of Senator Cuenco as Senate President for lack of quorum. The case cropped up when then Senate President Avelino walked out of the Senate halls followed by nine other Senators, leaving only twelve senators in the session hall. The remaining twelve Senators declared the position of the Senate President vacant and unanimously designated Senator Cuenco as the Acting Senate President. Senator Avelino questioned the election, among others, for lack of quorum. Refusing to assume jurisdiction, this Court held: ESCDHA The Court will not sally into the legitimate domain of the Senate on the plea that our refusal to intercede might lead into a crisis, even a revolution. No state of things has been proved that might change the temper of the Filipino people as a (sic) peaceful and law-abiding citizens. And we should not allow ourselves to be stampeded into a rash action inconsistent with the claim that should characterize judicial deliberations. 74

The same principle should apply here. We must not lightly intrude into the internal rules of a co-equal branch. The doctrine of separation of powers demands no less than a prudent refusal to interfere with the internal affairs of the Senate. The issues of lack of quorum and the inclusion of the votes of the ex officio members are beyond this Court's judicial review. HTSaEC Apart from jurisprudence, common sense also requires that We should accord the same privilege and respect to a co-equal branch. If this Court allows Justices who are physically absent from its sessions to cast their vote on a petition, there is no reason to treat the Senators differently. It is also common knowledge that even members of the House of Representatives cast their vote on a bill without taking part in its deliberations and sessions. Certainly, what is sauce for the goose is sauce for the gander. If it is allowed in the House of Representatives, it should be allowed in the Senate. Kung ito'y pinapayagan sa Mababang Kapulungan, dapat payagan din sa Mataas na Kapulungan. Avelino v. Cuenco was decided under the 1935 Constitution. Judicial power has been expanded under the present 1987 Constitution. 75 Even if We resolve the twin issues under Our expanded jurisdiction, Section 18 of the Senate Rules is sufficiently complied with. The section is silent on proper voting procedure in the Senate. It merely provides that the Senate may cite a witness in contempt by "majority vote of all its members". Clearly, as long as the majority vote is garnered, irrespective of the mode on how it is done, whether by mere signing of the contempt order or otherwise, the requirement is met. Here, it is clear that a majority of the members of the respective Senate Committees voted to cite petitioner Neri in contempt. HTASIa The required majority vote under Section 18 was sufficiently met if We include the votes of the ex officio members of the respective Senate Committees. Section 18 does not distinguish between the votes of permanent and ex officio members. Interpreting the Section, the votes of the ex officio members of the respective Committees should be counted in determining the quorum and the required majority votes. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish. Kapag ang batas ay di nagtatangi, di tayo dapat magtangi. Conclusion Summing up, I affirm my stand to grant the petition for certiorari. The Senate cannot compel petitioner Neri to answer the three questions subject of the petition for certiorari or to divulge the contents of his pertinent conversation with the President on the ground of presidential communication privilege. ECaSIT I also affirm my position to quash the Senate contempt and arrest order against petitioner on the ground of valid invocation of presidential communication privilege, although (a) it is unnecessary to re-publish Senate Rules of Procedure Governing

Inquiries in Aid of Legislation, (b) the Senate failure to furnish petitioner with a list of questions was cured, and (c) there was a majority vote. Sa kabuuan, pinagtitibay ko ang aking paninindigan upang payagan ang petisyon para sa certiorari. Hindi mapipilit ng Senado si petisyuner Neri na sagutin ang tatlong tanong sa petisyon o ibunyag ang laman ng kaugnay na usapan nila ng Pangulo, dahil sa pampangulong pribilehiyo sa komunikasyon. Pinaninindigan ko rin ang aking posisyon upang pawalang-saysay ang order ng Senado sa pagsuway at pag-aresto sa petisyuner, dahil sa tamang imbokasyon ng nasabing pribilehiyo, bagama't (a) hindi na kailangan ang muling paglalathala ng mga Tuntunin sa Prosidyur ng Senado sa Pagsisiyasat Tulong sa Paggawa ng Batas, (b) nalunasan ang pagkukulang ng Senado na bigyan ang petisyuner ng listahan ng mga tanong, at (c) nagkaroon ng nakararaming boto. cIHCST Accordingly, I vote to deny respondents' motion for reconsideration. [G.R. No. 170338. December 23, 2008.] VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS, respondents. [G.R. No. 179275. December 23, 2008.] SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners, vs. THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondent. MAJ. LINDSAY REX SAGGE, petitioner-in-intervention. AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors. DECISION NACHURA, J p: More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a controversy that placed the legitimacy of the present administration on the line, and resulted in the near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the President's instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings

were to become the subject of heated legislative hearings conducted separately by committees of both Houses of Congress. 1 cCSDTI In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes", and set in motion a congressional investigation jointly conducted by the Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the supposed three-hour taped conversation. After prolonged and impassioned debate by the committee members on the admissibility and authenticity of the recordings, the tapes were eventually played in the chambers of the House. 2 On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely. Nevertheless, they decided to prepare committee reports based on the said recordings and the testimonies of the resource persons. 3 CTHaSD Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction 4 docketed as G.R. No. 170338. He prayed that the respondent House Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped conversations in their committee reports and for any other purpose. He further implored that the said recordings and any reference thereto be ordered stricken off the records of the inquiry, and the respondent House Committees directed to desist from further using the recordings in any of the House proceedings. 5 Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly stopped. AECacS After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a privilege speech, "The Lighthouse that Brought Darkness". In his discourse, Senator Lacson promised to provide the public "the whole unvarnished truth the what's, when's, where's, who's and why's" of the alleged wiretap, and sought an inquiry into the perceived willingness of telecommunications providers to participate in nefarious wiretapping activities. On motion of Senator Francis Pangilinan, Senator Lacson's speech was referred to the Senate Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had previously filed two bills 6 seeking to regulate the sale, purchase and use of wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties. 7

In the Senate's plenary session the following day, a lengthy debate ensued when Senator Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her considered view that the Constitution absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci" tapes. However, she recommended a legislative investigation into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal wiretapping of public officials. 9 EHaASD On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, 10 docketed as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution. 11

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the "Hello Garci" tapes on September 7, 12 17 13 and October 1, 14 2007. Intervening as respondents, 15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed their Comment 16 on the petition on September 25, 2007. aAIcEH The Court subsequently heard the case on oral argument. 17 On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource persons summoned by the Senate to appear and testify at its hearings, moved to intervene as petitioner in G.R. No. 179275. 18 On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19 It may be noted that while both petitions involve the "Hello Garci" recordings, they have different objectives the first is poised at preventing the playing of the tapes in the House and their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation. The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275. ADCIca

I Before delving into the merits of the case, the Court shall first resolve the issue on the parties' standing, argued at length in their pleadings. In Tolentino v. COMELEC, 20 we explained that "'[l]egal standing' or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of the challenged governmental act . . .," thus, generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action. 21 The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". 22 HTcDEa However, considering that locus standi is a mere procedural technicality, the Court, in recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arroyo 23 articulates that a "liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings". 24 The fairly recent Chavez v. Gonzales 25 even permitted a non-member of the broadcast media, who failed to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary of Justice and the National Telecommunications Commission. The majority, in the said case, echoed the current policy that "this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, in keeping with the Court's duty under the 1987 Constitution to determine whether or not 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". 26 ACcHIa In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the members of the respondent committees as one of the voices in the recordings. 27 Obviously, therefore, petitioner Garcillano stands to be directly injured by the House committees' actions and charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition. In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any attempt to use the "Hello Garci" tapes will further divide the

country. They wish to see the legal and proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation. 28 Intervenor Sagge alleges violation of his right to due process considering that he is summoned to attend the Senate hearings without being apprised not only of his rights therein through the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of the intended legislation which underpins the investigation. He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds involved in the conduct of the questioned hearings. 29 CAaSHI

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that intervenor Sagge asserts his constitutional right to due process, 30 they satisfy the requisite personal stake in the outcome of the controversy by merely being citizens of the Republic. Following the Court's ruling in Francisco, Jr. v. The House of Representatives, 31 we find sufficient petitioners Ranada's and Agcaoili's and intervenor Sagge's allegation that the continuous conduct by the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public funds. 32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the Court granted standing to the petitioners therein for, as in this case, they invariably invoked the vindication of their own rights as taxpayers, members of Congress, citizens, individually or in a class suit, and members of the bar and of the legal profession which were also supposedly violated by the therein assailed unconstitutional acts. 33 EIaDHS Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor Sagge advance constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. The issues are of transcendental and paramount importance not only to the public but also to the Bench and the Bar, and should be resolved for the guidance of all. 34 Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners Ranada and Agcaoili and intervenor Sagge. cHATSI II

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the determination and resolution of actual cases and controversies. 35 By actual cases, we mean existing conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. 36 Neither will the Court determine a moot question in a case in which no practical relief can be granted. A case becomes moot when its purpose has become stale. 37 It is unnecessary to indulge in academic discussion of a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of things, cannot be enforced. 38 In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings and from including the same in their committee report. He likewise prays that the said tapes be stricken off the records of the House proceedings. But the Court notes that the recordings were already played in the House and heard by its members. 39 There is also the widely publicized fact that the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in plenary by the respondent committees. 40 Having been overtaken by these events, the Garcillano petition has to be dismissed for being moot and academic. After all, prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act already accomplished. 41 TEAaDC III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement. Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure." The requisite of publication of the rules is intended to satisfy the basic requirements of due process. 42 Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. 43 What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines." 44 EScaIT

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006. 45 With respect to the present Senate of the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session. Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on Accountability of Public Officers and Investigations, 46 we said: ECcTaS Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure". We quote the OSG's explanation: The phrase "duly published rules of procedure" requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the following rationalization: CcSEIH The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business". Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators. 47 The subject was explained with greater lucidity in our Resolution 48 (On the Motion for Reconsideration) in the same case, viz.: On the nature of the Senate as a "continuing body", this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business

the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: EDISaA RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. HSCAIT This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate's main rules of procedure) states: RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. DCTSEA RULE LII DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. ECTIcS The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Respondents justify their non-observance of the constitutionally mandated publication by arguing that the rules have never been amended since 1995 and, despite that, they are published in booklet form available to anyone for free, and accessible to the public at the Senate's internet web page. 49 HIESTA The Court does not agree. The absence of any amendment to the rules cannot justify the Senate's defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of legislation only in accordance with duly published rules of procedure, and does not make any distinction whether or not these rules have undergone amendments or revision. The constitutional mandate to publish the said rules prevails over any custom, practice or tradition followed by the Senate. Justice Carpio's response to the same argument raised by the respondents is illuminating:

The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation", precluding any other form of publication. Publication in accordance with Taada is mandatory to comply with the due process requirement because the Rules of Procedure put a person's liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate. CScaDH The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a written document only for evidentiary purposes. 51 In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data messages and/or electronic documents. 52 It does not make the internet a medium for publishing laws, rules and regulations. Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure". ECaSIT Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the legislative investigation subject thereof still could not be undertaken by the respondent Senate Committees, because no published rules governed it, in clear contravention of the Constitution. With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in the consolidated petitions. WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on the "Hello Garci" tapes. aEHADT SO ORDERED.

Quisumbing, Carpio, Tinga, Chico-Nazario, Velasco, Jr., Leonardo-de Castro and Brion, JJ., concur. Puno, C.J., pls. see dissent. Ynares-Santiago, Austria-Martinez, Carpio-Morales and Azcuna, JJ., join the dissent of Chief Justice Puno. Corona, J., is on leave. Reyes, J., see concurring and dissenting opinion. Separate Opinions PUNO, C.J., dissenting: The case at bar takes one to task in distinguishing between what is apparent and what is real, what is central and what is peripheral, to get to the core of the issues that will decide the controversy at bar. SCcHIE The facts pertaining to both G.R. No. 170338 and G.R. No 17925 as narrated in the ponencia are undisputed. Hence, I will go direct to the issues. First, the issues in G.R. No. 179275. These were delineated in the Oral Argument held on October 2, 2007 as follows: 1. Whether the petitioners have locus standi to bring the suit.

2. Whether the Rules of Procedure of the Senate and the Senate Committees governing the conduct of inquiries in aid of legislation have been published, in accordance with Section 21, Article VI of the Constitution. Corollarily: cTIESD (a) (b) Whether these Rules must be published by every Congress. What mode/s of publication will comply with the constitutional requirement.

3. Whether the inquiry, which is centered on the so-called "Garci tapes" violates Section 3, Article III of the Constitution and/or Republic Act No. 4200. 1 As I agree with the disquisition of the ponencia on the first issue, I shall limit my discussion to the second and third issues. CDHSac Publication of Senate Rules Governing Inquiries in Aid of Legislation Let me hark back to the ruling of the Court on the publication of the "Rules of Procedure Governing Inquiries in Aid of Legislation" (Rules of Procedure Governing Inquiries) of the Senate in its March 25, 2008 Decision 2 (March 25 Neri Decision) and

September 4, 2008 Resolution 3 (September 4 Neri Resolution). I respectfully submit that the ponencia is not in accord with the ruling of the Court in these Neri cases (Neri Ruling). The proper application of the Neri Ruling to the case at bar will yield the conclusion that the subject Senate investigation should be allowed to proceed even if the Rules of Procedure Governing Inquiries were not published in the 14th Congress prior to the subject investigation. Still, I maintain my dissent to the Neri Ruling and arrive at this same conclusion through a different track. aIcHSC In the March 25 Neri Decision, the Court ruled, viz.: Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure". We quote the OSG's explanation: AECDHS The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. 4 THDIaC Subsequently, the Court clarified the above ruling in the September 4 Neri Resolution. I quote the ruling at length, viz.: Having touched the subject of the Rules, we now proceed to respondent Committees' fourth argument. Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless the same is repealed or amended. SaTAED On the nature of the Senate as a "continuing body", this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business, the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. ATcaHS

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied) Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. TCIEcH This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate's main rules of procedure) states: RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied) DSHTaC RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied) Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. EDISTc

However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." (Section 24, Rules of Procedure Governing Inquiries in Aid of Legislation) The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. HTCDcS The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. DHSEcI Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective. 5 (emphasis supplied) The ponencia quotes the foregoing ruling in the September 4 Neri Resolution in holding, viz.: cESDCa Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure." The requisite of publication of the rules is intended to satisfy the basic requirements of due process. Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines." EDISTc

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in 1995 and in 2006. With respect to the present Senate of the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session. xxx xxx xxx

. . . the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure". CcEHaI Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we take judicial notice of the fact, the recent publication does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions. In so far as the consolidated cases are concerned, the legislative investigation subject thereof still could not be undertaken by the respondent Senate Committees, because no published rules govern it, in clear contravention of the Constitution. 6 (emphasis supplied) cHTCaI While the ponencia cites the Neri Ruling to support its conclusion that the subject investigation cannot be conducted without published rules, I submit that it fails to adhere to the Neri Ruling, as the latter emphasizes that "not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective". IDSaAH It will be recalled that in the March 25 Neri Decision, the Court struck down not the entire proceedings of the Senate investigation on the NBN-ZTE deal for want of published Rules of Procedure Governing Inquiries, but only the Order dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention (January 30 Contempt Order) as stated in the dispositive portion of the Decision. 7 A faithful adherence of the case at bar to the Neri Ruling would yield the conclusion that the "Garci tapes" investigation may be conducted even without the published Rules of Procedure Governing Inquiries, and that only those orders and proceedings that result in the violation of the rights of the witnesses may be considered null and void. The ponencia did not, however, show which orders or proceedings resulted in this violation and, instead, made a blanket

prohibition of the conduct of the "Garci tapes" investigation for want of published Rules of Procedure Governing Inquiries. DScTaC In line with my position in my Dissents to the March 25 Neri Decision and the September 4 Neri Resolution, it is my considered view that the subject "Garci tapes" investigation is not constitutionally infirm for being conducted without the publication of the Rules of Procedure Governing Inquiries in the 14th Congress prior to said investigation. In addition to the points raised in my two Dissents, I respectfully submit that the following inconsistencies and erroneous assumptions in the March 25 Neri Decision and September 4 Neri Resolution merit a review of the Neri Ruling and a consequent conclusion that the Rules of Procedure Governing Inquiries, sans amendment since its publication in two newspapers of general circulation on August 24, 1995, need not be published by the Senate of every Congress. HAICcD 1. The validity of one provision of the Rules of Procedure Governing Inquiries but invalidity of the entire Rules In the March 25 Neri Decision, the Court recognized the validity and effectivity of the Rules of Procedure Governing Inquiries, even without publication in the 14th Congress, by citing Section 18 of said rules and holding that the January 30 Contempt Order against therein petitioner Romulo Neri was invalid for failing to comply with the majority voting requirement under Section 18. In the same breath, however, the Court held that the subject investigation on the NBN-ZTE deal was procedurally infirm for being conducted without valid Rules of Procedure Governing Inquiries, as these were not published in the 14th Congress. The inconsistency is apparent in the Court's explanation of the third and the fourth of the five reasons for holding that the therein respondent Senate Committees committed grave abuse of discretion in issuing the January 30 Contempt Order, viz.: ScaAET Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee was present during the deliberation. Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." cTIESD Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. . . xxx xxx xxx

Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure". We quote the OSG's explanation: DISHEA The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. 8 (emphasis supplied) (footnote omitted) cEHITA In the September 4 Neri Resolution, the Court reiterated its recognition of the validity and effectivity of Section 18 of the Rules of Procedure Governing Inquiries, viz.: In the present case, the Court's exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that: acAIES "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." (Emphasis supplied) In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were present. These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order. 9 (emphasis supplied) (footnote omitted) HCSEcI But in the same breath, it assailed the validity of the Rules of Procedure Governing Inquiries and held that orders issued and proceedings conducted pursuant to said rules, which result in the violation of rights of witnesses were null and void, viz.: The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each

Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put the public on notice. THaCAI If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity. Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective. 10 AHSaTI In sum, in both the March 25 Neri Decision and the September 4 Neri Resolution, the Court did not invalidate the entire Senate investigation proceedings conducted in accordance with the Rules of Procedure Governing Inquiries, which were not published in the 14th Congress. In fact, the Court ruled on the issue of executive privilege raised in said proceedings. It struck down only the January 30 Contempt Order against therein petitioner Neri for failure to comply with Section 18 of the Rules of Procedure Governing Inquiries, while at the same time holding these rules as constitutionally infirm for want of publication. cEHSIC Let us proceed to the second set of inconsistencies. 2. The continuing nature of the Senate as an institution and the discontinuing nature of its business vis-a-vis the continuing nature of the Rules of the Senate In attempting to harmonize the above inconsistency in the March 25 Neri Decision, the Court, in its September 4 Neri Resolution, saw fit to "issue a clarification . . . (o)n the nature of the Senate as a 'continuing body'" and dichotomized this nature into the "continuity of the Senate as an institution" and the "opposite nature of the conduct of its business". This approach, however, spawned its own inconsistencies. DHcESI In explaining this dichotomy and holding that the Rules of Procedure Governing Inquiries could not be given continuing effect from one Congress to the next unless expressly so provided in said rules, the Court interpreted Section 136 on the "unfinished business" in conjunction with Section 137 on the "date of taking effect" of the Rules of the Senate, viz.: This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate's main rules of procedure) states: HcACTE RULE XLIV

UNFINISHED BUSINESS SEC. 136. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied) ACIDSc Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. 11 (emphasis supplied) (footnote omitted) EHTIDA There is no quarrel and my Dissent to the September 4 Neri Resolution in fact acknowledges that the Rules of the Senate (Senate Rules) provide in Section 136 that all unfinished business or pending matters and proceedings of the Senate terminate with the expiration of a Congress. This provision, in conjunction with Section 137, does not, however, lend support to the Court's ruling that absent a provision in the Rules of Procedure Governing Inquiries explicitly stating the "continued effectivity of such rules until they are amended or repealed", it "cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress" for the following reasons: AIDSTE First, in the September 4 Neri Resolution, the Court interpreted "pending matters" in Section 136 of the Senate Rules to include the Rules of Procedure Governing Inquiries that "may be taken by the succeeding Congress as if presented for the first time". This posture, however, comes also with the interpretation that the Senate may

choose not to take up the Rules of Procedure Governing Inquiries, thereby leaving it without rules to conduct legislative inquiries as the effectivity of the rules had terminated with the previous Congress. This is an absurd interpretation considering that the Senate is fully aware that Article VI, Section 21 requires legislative investigations to be conducted in accordance with duly published Rules of Procedure Governing Inquiries. HIACac The September 4 Neri Resolution recognizes that the Senate Rules have continuing effect from one Congress to the next, because it provides in Section 137 that the Senate Rules "shall take effect on the date of their adoption and shall remain in force until they are amended or repealed". The Senate Rules unmistakably state that their effectivity can be interrupted only by amendment or repeal as provided in Section 137 and not by termination of one Congress as provided in Section 136. The Rules of Procedure Governing Inquiries have the same character as the Senate Rules. Both are not "pending matters and proceedings" that terminate with the expiration of the Congress. Pending matters and proceedings include investigations that have not been terminated or bills that have not completed the legislative process in the Senate of one Congress. ADCEcI The continuing effectivity of the Senate Rules from one Congress to the next, which the Court acknowledged in its September 4 Neri Resolution, evinces the nature of the Senate as a continuing body governed by its continuing Senate Rules. If the Senate were not a continuing body, there would be no reason for the Senate Rules to likewise have a continuing effect. In contradistinction, the effectivity of the Rules of Proceedings of the House of Representatives (House Rules) which is admittedly not a continuing body, as the terms of all congressmen end at the same time terminates upon the expiration of one Congress. Thus, Rule 1, Section 1 of the 14th Congress House Rules adopted on November 20, 2007 reflects the practice of the House of Representatives of adopting rules of proceedings on its first meeting and organization upon the opening of a succeeding Congress, viz.: HaTDAE RULE I Convening and Organizing the House xxx xxx xxx

After the oath-taking of the newly-elected Speaker, the body shall proceed to the adoption of the rules of the immediately preceding Congress to govern its proceedings until the approval and adoption of the rules of the current Congress. (emphasis supplied) On November 20, 2007, the House of Representatives of the 14th Congress, pending the adoption of its own House Rules, adopted the House Rules of the 13th Congress as its provisional rules. 12 The House of Representatives of each Congress adopts its own rules. 13 HTcDEa

Second, the above-quoted Sections 136 and 137 of the Senate Rules, adopted under the regime of the 1987 Constitution, do not depart from the provisions of the Senate Rules adopted under the 1935 Constitution, viz.: Chapter XLVI Unfinished Business in the Senate Sec. 108. Unfinished business at the end of one session shall not be affected by the closing of same, but shall be taken up again at the next session in the same status in which it was. EDISTc Notwithstanding the provision of the preceding paragraph, matters pending at the expiration of one Congress shall no longer be acted on. Chapter LIII Sec. 122. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. 14 Under the 1935 Constitution (and in the 1987 Constitution, as I have consistently maintained in my Dissents), it was well-settled that the Senate was a continuing body as held in Arnault v. Nazareno, citing the U.S. case McGrain v. Daugherty. 15 The 1935 Constitution provided that two-thirds, or a majority of the Senate, continued into the next Congress. 16 SIDTCa Contrary to the notion that the Senate is no longer a continuing body under the 1987 Constitution as less than a majority continue into the Senate of the succeeding Congress 17 the termination of the unfinished business of the Senate at the expiration of a Congress and the effectivity of the Senate Rules until amended or repealed as provided in Sections 136 and 137 of the Senate Rules under the 1987 Constitution, do not lend support to a departure from the Arnault ruling that the Senate is a continuing body. Under both the 1935 and the 1987 Constitutions, the Senate Rules show that a continuing Senate's unfinished business terminates at the expiration of one Congress, and its rules remain in effect from one Congress to the next. As expounded in my Dissent to the September 4 Neri Resolution, the Philippine Senate is patterned after the U.S. Senate, which is a continuing body as ruled by the U.S. Supreme Court in McGrain. The continuing nature of the U.S. Senate is also reflected in the Standing Rules of the Senate under Rule V (2), viz.: Rule V SUSPENSION AND AMENDMENT OF THE RULES xxx xxx xxx

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules. 18 (emphasis supplied) In sum, the Philippine Senate Rules under both the 1935 and the 1987 Constitutions and the Standing Rules of the U.S. Senate, after which the Philippine Senate was patterned, reflect the nature of the Senate as a continuing body. That the Senate is a continuing body proceeds from its nature as created by the Framers of the U.S. Constitution and adopted by the 1935 and the 1987 Philippine Constitutions. The Senate Rules are not the bases for the continuing nature of the Senate, but they embody and reflect this nature. Third, the recognition that the Senate is a continuing body as reflected in the continuing effect of the Senate Rules from one Congress to the next is not consistent with the holding of the ponencia that the Rules of Procedure Governing Inquiries must explicitly provide for this continuing effectivity if such were the intent of the Senate, viz.: aEcSIH The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. 19 (emphasis supplied) DHcTaE I reiterate my position in my Dissent to the September 4 Neri Resolution that the publication of the Rules of Procedure Governing Inquiries on August 24, 1995 has satisfied the requirement under Section 21, Article VI of the 1987 Constitution that inquiries in aid of legislation be conducted in accordance with the Senate's "duly published rules of procedure." Interpreting Article 2 of the Civil Code of the Philippines, which states that "(l)aws shall take effect after fifteen days following completion of their publication in the Official Gazette, unless it is otherwise provided . . .," the Court ruled in the landmark Taada v. Tuvera, 20 viz.: ". . . all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation." 21 ScHAIT Publication must be made in the Official Gazette 22 or a newspaper of general circulation. 23 As a general rule, one-time publication suffices to satisfy the due process requirement to inform the public of a rule that would govern it and affect its rights. It is not uncommon for laws and rules to provide that they shall take effect upon a certain date following publication in a newspaper of general circulation without having to

state that they "shall remain in force until they are amended or repealed" for them to have continuing effect. These laws and rules are published only once, and yet they continue to be in force. The Court itself employs this language in its rules as shown in the recently promulgated Rule on the Writ of Habeas Data and Rule on the Writ of Amparo, respectively, viz.: TDAHCS Section 25. Effectivity. This Rule shall take effect on February 2, 2008 following its publication in three (3) newspapers of general circulation. Section 27. Effectivity. This Rule shall take effect on October 24, 2007 following its publication in three (3) newspapers of general circulation. HScaCT The exception to the general rule that one-time publication suffices for a law or rule to have continuing effect is when there are circumstances or factors that interrupt this continuity. An example is the discontinuation of the existence of the House of Representatives as a legislative body, which terminates the effectivity of its published Rules of Procedure Governing Inquiries and requires the publication of these rules in the succeeding Congress for them to take effect. As discussed above and in my Dissents to the March 25 Neri Decision and September 4 Neri Resolution, the Senate, unlike the House of Representatives, is a continuing body. Thus, contrary to the holding of the ponencia, the Senate's Rules of Procedure Governing Inquiries, sans amendment, need not be published by the Senate of every Congress and need not also state that they shall "remain in force until they are amended or repealed" for them to be effective from one Congress to the next. Quite the opposite of the ponencia's ruling, in the absence of language stating that the Rules of Procedure Governing Inquiries shall not continue in effect from one Congress to the next, these rules shall have continuing effect. aDATHC In sum, the above discussion shows that the March 25 Neri Decision and September 4 Neri Resolution themselves provide bases for concluding that the Senate is a continuing body and that one-time publication of the Rules of Procedure Governing Inquiries, sans amendment, suffices to satisfy the publication requirement under Article VI, Section 21 of the 1987 Constitution. I respectfully submit that the Court ought to so conclude in order to uphold internal consistency in its ruling with respect to the constitutional requirement of publication of the Senate's Rules of Procedure Governing Inquiries. In line with my position in my Dissents to the Neri Ruling, I submit that the publication of the Rules of Procedure Governing Inquiries in the 14th Congress prior to the conduct of the subject "Garci tapes" investigation is not a requirement for conducting such investigation. AIDTHC Having dispensed with the issue of the constitutional requirement of publication of the Rules of Procedure Governing Inquiries, let us now proceed to the third issue. The "Garci tapes" in relation to Article III, Section 3 of the 1987 Constitution and

R.A. No. 4200 Let me begin the disquisition on the issue of "whether the inquiry, which is centered on the so-called 'Garci tapes' violates Section 3, Article III of the Constitution and/or Republic Act No. 4200" by stating what the disposition of the case at bar is not about and proceed forthwith to what the disposition of this case is about. To avoid clutter, let us excise the fat to get to the lean meat of the controversy before the Court. EcDSHT While the 1987 Constitution affords paramount importance to the policy of transparency, public accountability, and informed participation of the citizenry in a democracy, the case at bar is not about balancing between the right to privacy of communication under Article III, Section 3 24 of the 1987 Constitution and the right to information under Article III, Section 7 25 of the charter. The petitioners in this case are not suing as citizens demanding information from the government. aHTCIc While the 1987 Constitution unmistakably recognizes the indispensable role of legislative investigations in crafting sound law and also gives prime recognition to the right to privacy of communication, the case at bar is not about balancing an asserted right to privacy of communication against the Senate's exercise of its power of legislative investigation. This case does not involve a situation in which a witness in a legislative inquiry invokes the right to privacy of communication, but the Senate compels him, under pain of contempt, to disclose the communication on account of an overriding public interest. TECIHD The bone of contention in the case at bar is whether the Senate can use, in its legislative investigation, in admissible evidence of a surreptitiously and illegally recorded private communication. The law decisive of the case at bar is R.A. No. 4200 or the Anti-Wiretapping Law enacted in 1965. Introduced by Senator Lorenzo Taada, the explanatory note of the bill provides the background and rationale for the law, viz.: The privacy of communication and correspondence is among the fundamental rights of an individual secured and guaranteed by our Constitution. Thus, section 1(5) of the Bill of Rights of the Constitution provides that, "The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order require otherwise." aEHAIS xxx xxx xxx

At present, the laws penalizing the violation of the privacy of communication are inadequate to cope with modern developments. As we are all aware of, technology today has so far advanced, and will inexorably continue to advance, that there is now an ever-growing array of devices or arrangements for eavesdropping . . . There could, indeed, be no doubt that these modern devices or arrangements, if availed of by any

or officers of the government, to spy on another, could be the most obnoxious instruments of oppression or arbitrary power. Sooner or later we will have to deal with the danger that these increasingly sensitive electronic ears, which are as fantastic as they are alarming, may annihilate completely the privacy of communication. An additional and potent deterrent is obviously called for if we are to guard against what might well be subversive of one of our cherished personal freedoms which makes life worth living. DCESaI xxx xxx xxx

Considering our democratic set-up which is founded, among others on our high regard for the individual's rights and freedoms, the proposed measure will be but in accord with the principles of law and government enshrined in the Bill of Rights of our Constitution which are designed to protect the feelings and sensibilities of every individual as a human being against the incursions of unwelcome intruders. Put succinctly, R.A. No. 4200 prohibits eavesdropping or unwelcome intrusions into private communications. Section 1 of the law provides that these acts are unlawful: SECIcT Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: aCSDIc It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. STcaDI Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the

offender is an alien he shall be subject to deportation proceedings. (emphases supplied) A private communication is characterized as such based not on the content of the communication, but on the context that it was said in private and not for public consumption. That the content or nature of the communication is immaterial was ruled in Ramirez v. Court of Appeals, 26 viz.: aCIHcD . . . the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law,) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." (emphasis supplied)(footnote omitted) HIAESC The Senate deliberations on R.A. No. 4200 evince the meaning of private, as opposed to public, communication, viz.: Senator DIOKNO. Do I Understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly. TASCEc Senator TAADA. Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person not between a speaker and a public. Senator DIOKNO. The wording of the law is "communication or spoken word." Senator TAADA. Yes. Senator DIOKNO. The term "spoken word" would automatically include speeches, including, Mr. Senator, what we are doing here this morning. HcACTE Senator TAADA.

As I have said, Your Honor, the purpose of this bill is to prevent the tape recording or interception of a communication between one person and an another not between a speaker and a public. Because precisely, the speaker speaks so that the public may know what he has in mind, what he wants to communicate to the people, and there should be no objection to tape recording that speech. . . . 27 (emphases supplied) EcTDCI R.A. No. 4200, however, provides for exceptions when wiretapping is allowed by written order of the court under Section 3, viz.: Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. (emphasis supplied) CIaHDc To further give teeth to the above prohibition, R.A. No. 4200 makes illegally wiretapped communications inadmissible in any proceeding, viz.: Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (emphasis supplied) Applying these provisions to the case at bar, the wiretapping of the communication recorded in the "Garci tapes" may be held legal only if it was recorded with consent of the parties to the conversation or upon written court order. As the wiretapping was

done in the course of duty by the witness, Technical Sergeant Vidal Doble, he may be presumed to have been acting regularly in the performance of his official duties. 28 Doble testified that he presumed that the order of his superior to him to conduct a wiretap was legal, viz.: aScIAC Sen. Cayetano (P). . . Ngayon itong noong sinabi sa iyo ito, anong pakiramdam mo? Nagulat ka ba o parang normal lang sa iyo na, "Okay, bagong assignment", may naisip ka bang baka violation ito ng isang batas? May naisip ka bang ganon? Mr. Ooble. Ang nasa isip po kasi naming noon since na galing sa military hierarchy ang order, we assume that is a legal order, Your Honor. 29 The legislative investigation should precisely be allowed to proceed to establish the circumstances surrounding the wiretapping and determine whether or not the wiretap was legally done with the consent of the parties or lawful court order. AHDcCT Should it be established, however, that the conversations in the "Garci tapes" were illegally wiretapped, the question that comes to the fore is whether the "communication or spoken word (in the tapes), their existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained" may be used in the subject Senate investigations. CDHAcI In Ramirez, in which the Court found that petitioner Ramirez violated R.A. No. 4200 for secretly recording her private conversation with therein respondent Garcia, the Court published in its decision the transcript of the illegally wiretapped conversation as part of the narration of the facts of the case. A mechanical and literal reading of Sections 1 and 4 of R.A. No. 4200 would yield the absurd conclusion that the Court violated these provisions for "communicat(ing) the contents thereof (the illegally wiretapped conversation), either verbally or in writing" and using the inadmissible transcription in its judicial proceedings. It is clear to the eye that this was not the intent of the lawmakers in enacting R.A. No. 4200. "Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible (Pacific Oxygen and Acytelene Co. vs. Central Bank, 37 SCRA 685, [1971]) or absurd or would lead to an injustice. (12 Casela v. Court of Appeals, 35 SCRA 279 [1970]). 30 (emphasis supplied) There is thus a need to interpret Sections 1 and 4 of R.A. No. 4200. CITcSH Section 1 in relation to Section 2 of R.A. No. 4200 provides an exception to the prohibition on the "use of such record (of wiretapped conversation) or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3. . ." The offenses under Section 3 which allows wiretapping upon written order of the court are as follows: "treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting

to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security." AcHEaS The exception under Section 1 in t relation to Section 3 of R.A. No. 4200 does not include the use of illegally wiretapped communication for purposes of prosecuting violations of R.A. No. 4200 itself as the Court did in Ramirez. Not reading this exception into the law would impede the prosecution of the acts it prohibits and contradict the very purpose for adopting the law as clearly stated in its title, "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for Other Purposes." Well-settled is the rule in statutory construction that "where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. 31 Interpretatio talis in ambiguis semper frienda est, ut evitatur inconveniens et absurdum. R.A. No. 4200 should be given a sensible construction, so as to give effect to its rationale and intent and thus avoid an unjust or absurd interpretation. The ineluctable conclusion is that the use of illegally wiretapped communication must be allowed in a prosecution under R.A. 4200 precisely to deter the commission of illegal wiretapping. caCSDT Corollary to this conclusion is that such evidence should be an exception to inadmissible evidence under Section 4 of the law. Judges and prosecutors who possess and use illegally wiretapped communications in prosecutions for violations of R.A. No. 4200 are thus not liable for violating this law in the same manner that, by way of exception, they are not liable for illegal possession of firearms where the firearm is presented in evidence in a case involving the prosecution of a violation of R.A. No. 8294. 32 This is true despite the absence of such an exception to illegal possession, in contradistinction to the Intellectual Property Code of the Philippines, which explicitly provides the following exception to infringement of copyright under Section 184 (l)(k): "Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner." TCacIE For similar reasons, another exception that ought to be read into Sections 1 and 4 of R.A. No 4200 is the use and admissibility of illegally wiretapped communication in legislative investigations whose particular purpose is precisely to craft or improve laws that will address the evil of illegal wiretapping. Without this exception, the absurd result would be that legislators cannot at all investigate illegal wiretaps as they happen on the ground and plug loopholes in the law, because Section 4 of R.A. No. 4200 provides that even the fact of existence of an illegally wiretapped communication is inadmissible in evidence. To be sure, this could not have been the intent of the law. Lest the herein recognized exceptions be misconstrued and open the floodgates to violations of R.A. No. 4200, it must be emphasized that as a general rule, illegally wiretapped material is inadmissible for any purpose in any proceeding, including legislative investigations, in accordance with R.A. No. 4200. 33 As a very narrow

exception, however, the wiretapped material may be used and is admitted in a judicial proceeding for prosecution of violations of R.A. No. 4200 and, akin to this, in a legislative investigation in aid of legislation whose purpose is precisely to address the problem of illegal wiretap. IASEca In the case at bar, the focus of the Senate investigation as shown by the transcripts of its hearings 34 has been the illegal wiretapping of several personalities including the Commander-in-Chief and President of the Philippines, the possible involvement of telecommunication providers in the illegal wiretap, the use of scarce intelligence resources for wiretapping in connection with the conduct of the 2004 Presidential elections, and electoral fraud. The purpose of the investigation may also be gleaned from two bills previously filed in relation thereto by the Chairperson of the National Defense and Security Committee, seeking to (l) control and regulate the sale, purchase and use of wiretapping equipment; and (2) prohibit the Armed Forces of the Philippines from performing electoral duties. 35 Prescinding from the very narrow contours of the exception in using illegally wiretapped communications, the Senate may proceed with the use of the "Garci tapes" in a legislative inquiry in aid of legislation whose purpose is to craft or improve legislation on wiretapping. On the other hand, the "Garci tapes" are not admissible in evidence in legislative investigations for a different purpose such as the punishment of electoral fraud. While electoral fraud is a serious anomaly that erodes the foundation of democracy and should not go unpunished, evidence obtained not through illegal wiretap should be presented in proceedings investigating this matter. Resort to illegal wiretapping to catch perpetrators of electoral fraud will only further erode our democracy. As Senator Taada exhorted in the explanatory note of Senate Bill No. 9, which became the Anti-Wiretapping Law: CAHTIS Considering our democratic set-up which is founded, among others on our high regard for the individual's rights and freedoms, the proposed measure will be but in accord with the principles of law and government enshrined in the Bill of Rights of our Constitution which are designed to protect the feelings and sensibilities of every individual as a human being against the incursions of unwelcome intruders. In conducting legislative inquiries in aid of legislation for the purpose of crafting or improving laws on wiretapping, the legislature ought to abide by the constitutional command under Article VI, Section 21 that in conducting such inquiries, "(t)he rights of persons appearing in or affected by such inquiries shall be respected." The legislature should thus use mechanisms and procedures available to it, such as executive sessions, in avoiding any further and unnecessary incursion into the right to privacy of communication. THaAEC With respect to the question of whether the use of the "Garci tapes" violates Article III, Section 3 of the Bill of Rights, the above disquisition on R.A. No. 4200 sufficiently addresses this issue. Under this constitutional provision, the privacy of

communication and correspondence shall be inviolable except (1) upon lawful order of the court, or (2) when public safety or order requires otherwise as prescribed by law. There is ostensibly no lawful order of the court under the first exception, and any argument anchored on the second exception will lead to R.A. No. 4200, being the only Philippine law on wiretapping. CIScaA Anent G.R. No. 170338, it is my considered view that the petition is moot and academic. 36 The petition prays that the Court issue a Resolution: a) Ordering the immediate issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction restraining and preventing the House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information Communications Technology, and Suffrage and Electoral Reforms from making use of the sound recording of the illegally obtained wiretapped conversations in their Report for the inquiries conducted relative thereto, or from otherwise making use of said recordings for any other purpose. TAcSaC b) Granting the issuance of a Writ of Prohibition by commanding the Respondent Committees to strike off the record of the proceedings any and all references to the illegally obtained wiretapped recordings, and to desist from further using the sound recordings of the illegally obtained wiretapped conversations in any of its proceedings. 37 The first prayer is moot and academic, as the "Garci tapes" were already played in the session floor of the House of Representatives on July 5, 2005. 38 The second prayer is also moot and academic, as the subject records of proceedings and reports belong to the House of Representatives of the Thirteenth Congress, which has already been terminated. The House of Representatives not being a continuous body, the current House of Representatives of the Fourteenth Congress is different from the House of Representatives of the Thirteenth Congress. Thus, petitioner Garcillano ought to first seekk recourse to the current House of Representatives with respect to his second prayer. IEDHAT I vote to dismiss the petitions in G.R. No. 170338 and G.R. No. 179275. REYES, R.T., J., concurring and dissenting: I concur with the ponencia insofar as it dismisses the petition in G.R. No. 170338 but dissent insofar as it grants the petition in G.R. No. 179275. I. The petition in G.R. No. 170338 should be dismissed for being moot.

In G.R. No. 170338, petitioner Virgilio D. Garcillano, via a petition for prohibition and injunction, with prayer for temporary restraining order and/or writ of preliminary injunction, implores the Court to issue a Resolution as follows: TaHDAS

a) Ordering the immediate issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction restraining and preventing the House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information Communications Technology, and Suffrage and Electoral Reforms from making use of the sound recording of the illegally obtained wiretapped conversations in their Report for the inquiries relative thereto, or from otherwise making use of said recordings for any other purpose. b) Granting the issuance of a Writ of Prohibition by commanding the Respondent Committees to strike off the record of the proceedings any and all references to the illegally obtained wiretapped recordings, and to desist from further using the sound recordings of the illegally obtained wiretapped conversations in any of its proceedings. 1 The Court cannot grant the prayer of petitioner Garcillano because it has been mooted. It is of public knowledge, a fit subject of judicial notice, 2 that the "Hello Garci" tapes were already played in the House of Representatives and heard by its members. 3 Then, separate committee reports on the "Hello Garci" tapes were submitted to then House Speaker Jose de Venecia, Jr. 4 cEAHSC Article VIII, Section 1 of the 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. 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. Thus, one of the requisites of judicial power is the presence of an actual controversy. Courts are prohibited from deciding hypothetical, conjectural or anticipatory questions despite their vast judicial power. Otherwise, a decision rendered would amount to nothing but an advisory opinion, which would not augur well with the function of courts as arbiters of controversies. In La Bugal-B'laan Tribal Association v. Sec. Ramos, 5 the Court held: TSIDaH An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. The power does not extend to hypothetical questions since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. 6 While it is true that the Court is not absolutely precluded from resolving issues that are otherwise moot, 7 no compelling circumstance is present here that would warrant the exercise of judicial review.

Too, the function of the writ of prohibition is to prevent the execution of an act which is about to be done. It is not intended to provide a remedy for acts already accomplished. 8 The office of prohibition is to arrest proceedings rather than to undo them. 9 A preventive remedy, as a rule, does not lie to restrain an act that is already fait accompli. 10 II. The petition in G.R. No. 179275 should likewise be dismissed because the Senate need not republish its Rules of Procedure Governing Inquiries in Aid of Legislation. HDTSIE The issues in G.R. No. 179275 are as follows: 1. Whether the petitioners have locus standi to bring the suit.

2. Whether the Rules of Procedure of the Senate and the Senate Committees governing the conduct of inquiries in aid of legislation have been published, in accordance with Section 21, Article VI of the Constitution. Corollarily: (a) (b) Whether these Rules must be published by every Congress. What mode/s of publication will comply with the constitutional requirement?

3. Whether the inquiry, which is centered on the so-called "Garci tapes" violates Section 3, Article III of the Constitution and/or Republic Act No. 4200. 11 HDITCS Anent the first issue, I agree with the ponencia and the dissenting opinion of Mr. Chief Justice Reynato Puno that petitioners Santiago Javier Ranada and Oswaldo D. Agcaoili, plus intervenor Maj. Lindsay Rex Sagge, possess the requisite locus standi to bring the suit. Courts should not be shackled by stringent rules which would result in manifest injustice. Rules of procedure are tools crafted to facilitate, not to frustrate, the attainment of justice. Thus, their strict and rigid application, if they result in technicalities that tend to frustrate rather than promote substantial justice, must be eschewed. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed with public interest, a relaxation of the application of the rules is in order. 12 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. 13 CSEHIa There is no question that the issues raised by petitioners Ranada and Agcaoili and intervenor Sagge are of paramount importance. Thus, any procedural barrier to their suit should be put aside. Now to the second issue the meat of the second petition. Section 21, Article VI of the Constitution states:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The ponencia holds that the Senate investigation on the "Hello Garci" tapes is infirm because the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had not been duly published at the time of the legislative inquiry in question. SEHDIC

I hold otherwise. On this score, I reiterate my separate opinion on the motion for reconsideration in Senate v. Ermita, 14 thus: True it is that, as the Constitution mandates, the Senate may only conduct an investigation in aid of legislation pursuant to its duly published rules of procedure. Without publication, the Senate Rules of Procedure Governing Inquiries in Aid of Legislation is ineffective. Thus, unless and until said publication is done, the Senate cannot enforce its own rules of procedure, including its power to cite a witness in contempt under Section 18. But the Court can take judicial notice that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation was published on August 20 and 21, 1992 in the Philippine Daily Inquirer and Philippine Star during the 9th Congress. The Senate again published its said rules on December 1, 2006 in the Philippine Star and Philippine Daily Inquirer during the 13th Congress. That the Senate published its rules of procedure twice more than complied with the Constitutional requirement. aCHDST I submit that the Senate remains a continuing body under the 1987 Constitution. That the Senate is a continuing body is premised on the staggered terms of its members, the idea being to ensure stability of governmental policies. This is evident from the deliberations of the framers of the Constitution, thus: "MR. RODRIGO. . . . I would like to state that in the United States Federal Congress, the term of the members of the Lower House is only two years. We have been used to a term of four years here but I think three years is long enough. But they will be allowed to run for reelection any number of times. In this way, we remedy the too frequent elections every two years. We will have elections every three years under the scheme and we will have a continuing Senate. Every election, 12 of 24 Senators will be elected, so that 12 Senators will remain in the Senate. In other words, we will have a continuing Senate. 15 cIHCST xxx xxx xxx

MR. DAVIDE. This is just a paragraph of that section that will follow what has earlier been approved. It reads: "OF THE SENATORS ELECTED IN THE ELECTION IN 1992, THE FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF VOTES SHALL SERVE FOR SIX YEARS AND THE REMAINING TWELVE FOR THREE YEARS." This is to start the staggering of the Senate to conform to the idea of a continuing Senate. THE PRESIDING OFFICER (Mr. Rodrigo). What does the Committee say? MR. SUAREZ. The Committee accepts the Davide proposal, Mr. Presiding Officer. 16 The Senate does not cease to be a continuing body merely because only half of its members continue to the next Congress. To my mind, even a lesser number of Senators continuing into the next Congress will still make the Senate a continuing body. The Senate must be viewed as a collective body. It is an institution quite apart from the Senators composing it. The Senate as an institution cannot be equated to its present occupants. It is indivisible. It is not the sum total of all sitting Senators at any given time. Senators come and go but the very institution of the Senate remains. It is this indivisible institution which should be viewed as continuing. HDTISa The argument that the Senate is not a continuing body because it lacks quorum to do business after every midterm or presidential elections is flawed. It does not take into account that the term of office of a Senator is fixed by the Constitution. There is no vacancy in the office of outgoing Senators during midterm or presidential elections. Article VI, Section 4 of the 1987 Constitution provides: The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. The term of a Senator starts at noon of June 30 next following their election and shall end before noon of June 30 six years after. The constitutional provision aims to prevent a vacuum in the office of an outgoing Senator during elections, which is fixed under the Constitution unless changed by law on the second Monday of May, 17 until June 30 when the Senators-elect assume their office. There is no vacuum created because at the time an outgoing Senator's term ends, the term of a Senator-elect begins. HTCIcE The same principle holds true for the office of the President. A president-elect does not assume office until noon of June 30 next following a presidential election. An

outgoing President does not cease to perform the duties and responsibilities of a President merely because the people had chosen his/her new successor. Until her term expires, an outgoing President has the constitutional duty to discharge the powers and functions of a President unless restricted 18 by the Constitution. In fine, the Senate is a continuing body as it continues to have a full or at least majority membership 19 even during elections until the assumption of office of the Senators-elect. The Senate as an institution does not cease to have a quorum to do business even during elections. It is to be noted that the Senate is not in session during an election until the opening of a new Congress for practical reasons. This does not mean, however, that outgoing Senators cease to perform their duties as Senators of the Republic during such elections. When the President proclaims martial law or suspends the writ of habeas corpus, for example, the Congress including the outgoing Senators are required to convene if not in session within 24 hours in accordance with its rules without need of call. 20 aSTAcH The Constitutional provision requiring publication of Senate rules is contained in Section 21, Article VI of the 1987 Constitution, which reads: The Senate or the House of Representatives or any of its respective Committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The above provision only requires a "duly published" rule of procedure for inquiries in aid of legislation. It is silent on republication. There is nothing in the constitutional provision that commands that every new Congress must publish its rules of procedure. Implicitly, republication is necessary only when there is an amendment or revision to the rules. This is required under the due process clause of the Constitution. cHCSDa The Senate in the 13th Congress caused the publication of the Rules of Procedure Governing Inquiries in Aid of Legislation. The present Senate (14th Congress) adopted the same rules of procedure in the NBN-ZTE investigation. It does not need to republish said rules of procedure because it is not shown that a substantial amendment or revision was made since its last publication that would affect the rights of persons appearing before it. On a more practical note, there is little to be gained in requiring a new Congress to cause the republication of the rules of procedure which has not been amended or revised. The exercise is simply a waste of government funds. Worse, it unduly burdens and hinders the Senate from discharging its constitutional duties. Publication takes time and during the interregnum, it cannot be gainsaid that the Senate is barred or restricted from conducting an investigation in aid of legislation.

I agree with the Chief Justice that this Court must be wary of the far-reaching consequences of a case law invalidating the Senate rules of procedure for lack of republication. Our ruling in this petition will not only affect the NBN-ZTE investigation, but all other Senate investigations conducted under the 10th, 11th, 12th, and the present 14th Congress, for which no republication of the rules has been done. These investigations have been the basis of several bills and laws passed in the Senate and the House of Representatives. Putting a doubt on the authority, effectivity and validity of these proceedings is imprudent and unwise. This Court should really be cautious in making a jurisprudential ruling that will unduly strangle the internal workings of a coequal branch and needlessly burden the discharge of its constitutional duty. 21 SHADEC In addition, let me point out the Philippine Constitution, past and present, were largely influenced by the United States Constitution. In McGrain v. Daugherty, 22 the United States Supreme Court explicitly ruled that the American Senate is a continuing body. In Arnault v. Nazareno, 23 the Philippine Supreme Court, relying on McGrain, held that the Philippine Senate is a continuing body. There is no plausible reason why the rule should be different today. In view of the foregoing, I find it unnecessary to delve on the third issue which the ponencia does not also address. WHEREFORE, I vote to DISMISS both petitions in G.R. No. 170338 and G.R. No. 179275. [G.R. No. 184849. February 13, 2009.] SPOUSES PNP DIRECTOR ELISEO D. DELA PAZ (Ret.) and MARIA FE C. DELA PAZ, petitioners, vs. SENATE COMMITTEE ON FOREIGN RELATIONS and the SENATE SERGEANT-AT-ARMS JOSE BALAJADIA, JR., respondents. RESOLUTION NACHURA, J p: This is a Petition for Certiorari and Prohibition 1 under Rule 65 of the Rules of Court filed on October 28, 2008 by petitioners-spouses General (Ret.) Eliseo D. dela Paz (Gen. Dela Paz) and Mrs. Maria Fe C. dela Paz (Mrs. Dela Paz) assailing, allegedly for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the orders of respondent Senate Foreign Relations Committee (respondent Committee), through its Chairperson, Senator Miriam Defensor-Santiago (Senator Santiago), (1) denying petitioners' Challenge to Jurisdiction with Motion to Quash Subpoenae and (2) commanding respondent Senate Sergeant-at-Arms Jose Balajadia, Jr. (Balajadia) to immediately arrest petitioners during the Senate committee hearing last October 23, 2008. The petition thus prays that respondent

Committee be enjoined from conducting its hearings involving petitioners, and to enjoin Balajadia from implementing the verbal arrest order against them. cSATDC The antecedents are as follow 2009jur On October 6, 2008, a Philippine delegation of eight (8) senior Philippine National Police (PNP) officers arrived in Moscow, Russia to attend the 77th General Assembly Session of the International Criminal Police Organization (ICPO)-INTERPOL in St. Petersburg from October 6-10, 2008. With the delegation was Gen. Dela Paz, then comptroller and special disbursing officer of the PNP. Gen. Dela Paz, however, was to retire from the PNP on October 9, 2008. On October 11, 2008, Gen. Dela Paz was apprehended by the local authorities at the Moscow airport departure area for failure to declare in written form the 105,000 euros [approximately P6,930,000.00] found in his luggage. In addition, he was also found to have in his possession 45,000 euros (roughly equivalent to P2,970,000.00). CAaSHI Petitioners were detained in Moscow for questioning. After a few days, Gen. Dela Paz and the PNP delegation were allowed to return to the Philippines, but the Russian government confiscated the euros. On October 21, 2008, Gen. Dela Paz arrived in Manila, a few days after Mrs. Dela Paz. Awaiting them were subpoenae earlier issued by respondent Committee for the investigation it was to conduct on the Moscow incident on October 23, 2008. On October 23, 2008, respondent Committee held its first hearing. Instead of attending the hearing, petitioners filed with respondent Committee a pleading denominated Challenge to Jurisdiction with Motion to Quash Subpoena. 2 Senator Santiago emphatically defended respondent Committee's jurisdiction and commanded Balajadia to arrest petitioners. TAIaHE Hence, this Petition. Petitioners argue that respondent Committee is devoid of any jurisdiction to investigate the Moscow incident as the matter does not involve state to state relations as provided in paragraph 12, Section 13, Rule 10 of the Senate Rules of Procedure (Senate Rules). They further claim that respondent Committee violated the same Senate Rules when it issued the warrant of arrest without the required signatures of the majority of the members of respondent Committee. They likewise assail the very same Senate Rules because the same were not published as required by the Constitution, and thus, cannot be used as the basis of any investigation involving them relative to the Moscow incident. Respondent Committee filed its Comment 3 on January 22, 2009. The petition must inevitably fail.2009jur

First. Section 16 (3), Article VI of the Philippine Constitution states: "Each House shall determine the rules of its proceedings". aTIEcA This provision has been traditionally construed as a grant of full discretionary authority to the Houses of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process. 4 The challenge to the jurisdiction of the Senate Foreign Relations Committee, raised by petitioner in the case at bench, in effect, asks this Court to inquire into a matter that is within the full discretion of the Senate. The issue partakes of the nature of a political question that, in Taada v. Cuenco, 5 was characterized as a question which, under the Constitution, is 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. Further, pursuant to this constitutional grant of virtually unrestricted authority to determine its own rules, the Senate is at liberty to alter or modify these rules at any time it may see fit, subject only to the imperatives of quorum, voting and publication. EDaHAT Thus, it is not for this Court to intervene in what is clearly a question of policy, an issue dependent upon the wisdom, not the legality, of the Senate's action. Second. Even if it is within our power to inquire into the validity of the exercise of jurisdiction over the petitioners by the Senate Foreign Relations Committee, we are convinced that respondent Committee has acted within the proper sphere of its authority. Paragraph 12, Section 13, Rule 10 of the Senate Rules provides: 12) Committee on Foreign Relations. Fifteen (15) members. All matters relating to the relations of the Philippines with other nations generally; diplomatic and consular services; the Association of Southeast Asian Nations; the United Nations Organization and its agencies; multi-lateral organizations, all international agreements, obligations and contracts; and overseas Filipinos. TcaAID A reading of the above provision unmistakably shows that the investigation of the Moscow incident involving petitioners is well within the respondent Committee's jurisdiction. The Moscow incident could create ripples in the relations between the Philippines and Russia. Gen. Dela Paz went to Moscow in an official capacity, as a member of the Philippine delegation to the INTERPOL Conference in St. Petersburg, carrying a huge amount of "public" money ostensibly to cover the expenses to be incurred by the delegation. For his failure to comply with immigration and currency laws, the Russian

government confiscated the money in his possession and detained him and other members of the delegation in Moscow. ScHADI Furthermore, the matter affects Philippine international obligations. We take judicial notice of the fact that the Philippines is a state-party to the United Nations Convention Against Corruption and the United Nations Convention Against Transnational Organized Crime. The two conventions contain provisions dealing with the movement of considerable foreign currency across borders. 6 The Moscow incident would reflect on our country's compliance with the obligations required of state-parties under these conventions. Thus, the respondent Committee can properly inquire into this matter, particularly as to the source and purpose of the funds discovered in Moscow as this would involve the Philippines' commitments under these conventions. DaHISE Third. The Philippine Senate has decided that the legislative inquiry will be jointly conducted by the respondent Committee and the Senate Committee on Accountability of Public Officers and Investigations (Blue Ribbon Committee). Pursuant to paragraph 36, Section 13, Rule 10 of the Senate Rules, the Blue Ribbon Committee may conduct investigations on all matters relating to malfeasance, misfeasance and nonfeasance in office by officers and employees of the government, its branches, agencies, subdivisions and instrumentalities, and on any matter of public interest on its own initiative or brought to its attention by any of its members. It is, thus, beyond cavil that the Blue Ribbon Committee can investigate Gen. Dela Paz, a retired PNP general and member of the official PNP delegation to the INTERPOL Conference in Russia, who had with him millions which may have been sourced from public funds. Fourth. Subsequent to Senator Santiago's verbal command to Balajadia to arrest petitioners, the Philippine Senate issued a formal written Order 7 of arrest, signed by ten (10) senators, with the Senate President himself approving it, in accordance with the Senate Rules. HCITcA Fifth. The Philippine Senate has already published its Rules of Procedure Governing Inquiries in Aid of Legislation in two newspapers of general circulation. 8 Sixth. The arrest order issued against the petitioners has been rendered ineffectual. In the legislative inquiry held on November 15, 2008, jointly by the respondent Committee and the Senate Blue Ribbon Committee, Gen. Dela Paz voluntarily appeared and answered the questions propounded by the Committee members. Having submitted himself to the jurisdiction of the Senate Committees, there was no longer any necessity to implement the order of arrest. Furthermore, in the same hearing, Senator Santiago granted the motion of Gen. Dela Paz to dispense with the presence of Mrs. Dela Paz for humanitarian considerations. 9 Consequently, the order for her arrest was effectively withdrawn. ICASEH

WHEREFORE, the petition is DISMISSED for lack of merit and for being moot and academic. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Leonardo-de Castro, Brion and Peralta, JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. Rollo, pp. 3-21. Id. at 28. Id. at 126-137. See Morrero v. Bocar, 37 O.G. 445. 100 Phil. 101 (1957). DCASEc

Art. 14 (2) of the United Nations Convention Against Corruption provides

State parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross border transfer of substantial quantities of cash and appropriate negotiable instruments. DHEaTS The United Nations Convention Against Transnational Organized Crime provides Art. 7 (1), Each State Party: (a) Shall institute a comprehensive domestic and regulatory and supervisory regime for banks and non-bank financial institutions and, where appropriate, other bodies particularly susceptible to money-laundering, within its competence, in order to deter and detect all forms of money-laundering, which regime shall emphasize requirements for customer identification, record-keeping and the reporting of suspicious transactions; Art. 7(2): SCEHaD State Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of

substantial quantities of cash and appropriate negotiable instruments. (Underscoring supplied.) aHcACI 7. Rollo, pp. 138-139.

8. Publication was made in the October 31, 2008 issues of the Manila Daily Bulletin and the Malaya. 9. Rollo, p. 143.2009jur

Copyright 2009

C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 183385 February 13, 2009 EVANGELINA MASMUD vs. NLRC, ET AL. THIRD DIVISION [G.R. No. 183385. February 13, 2009.] EVANGELINA MASMUD (as substitute complainant for ALEXANDER J. MASMUD), petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (First Division) and ATTY. ROLANDO B. GO, JR., respondents. RESOLUTION NACHURA, J p: Before the Court is a petition for review on certiorari 1 assailing the Decision 2 dated October 31, 2007 and the Resolution dated June 6, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 96279. SaETCI The facts of the case are as follows: On July 9, 2003, Evangelina Masmud's (Evangelina) husband, the late Alexander J. Masmud (Alexander), filed a complaint 3 against First Victory Shipping Services and Angelakos (Hellas) S.A. for non-payment of permanent disability benefits, medical expenses, sickness allowance, moral and exemplary damages, and attorney's fees. Alexander engaged the services of Atty. Rolando B. Go, Jr. (Atty. Go) as his counsel. In consideration of Atty. Go's legal services, Alexander agreed to pay attorney's fees on a contingent basis, as follows: twenty percent (20%) of total monetary claims as settled or paid and an additional ten percent (10%) in case of appeal. It was likewise agreed that any award of attorney's fees shall pertain to respondent's law firm as compensation.

On November 21, 2003, the Labor Arbiter (LA) rendered a Decision granting the monetary claims of Alexander. The dispositive portion of the decision, as quoted in the CA Decision, reads:2009jur WHEREFORE, foregoing considered, judgment is rendered finding the [First Victory Shipping Services and Angelakos (Hellas) S.A.] jointly and severally liable to pay [Alexander's] total permanent disability benefits in the amount of US$60,000.00 and his sickness allowance of US$2,348.00, both in Philippine currency at the prevailing rate of exchange at the time of payment; and to pay further the amount of P200,000.00 as moral damages, P100,000.00 as exemplary damages and attorney's fees equivalent to ten percent (10%) of the total monetary award. ESCDHA [Alexander's] claim for payment of medical expenses is dismissed for lack of basis. SO ORDERED. 4 Alexander's employer filed an appeal before the National Labor Relations Commission (NLRC). During the pendency of the proceedings before the NLRC, Alexander died. After explaining the terms of the lawyer's fees to Evangelina, Atty. Go caused her substitution as complainant. On April 30, 2004, the NLRC rendered a Decision dismissing the appeal of Alexander's employer. The employer subsequently filed a motion for reconsideration. The NLRC denied the same in an Order dated October 26, 2004. On appeal before the CA, the decision of the LA was affirmed with modification. The award of moral and exemplary damages was deleted. 5 Alexander's employers filed a petition for certiorari 6 before this Court. On February 6, 2006, the Court issued a Resolution dismissing the case for lack of merit.2009jur Eventually, the decision of the NLRC became final and executory. Atty. Go moved for the execution of the NLRC decision, which was later granted by the LA. The surety bond of the employer was garnished. Upon motion of Atty. Go, the surety company delivered to the NLRC Cashier, through the NLRC Sheriff, the check amounting to P3,454,079.20. Thereafter, Atty. Go moved for the release of the said amount to Evangelina. On January 10, 2005, the LA directed the NLRC Cashier to release the amount of P3,454,079.20 to Evangelina. Out of the said amount, Evangelina paid Atty. Go the sum of P680,000.00. aDTSHc Dissatisfied, Atty. Go filed a motion to record and enforce the attorney's lien alleging that Evangelina reneged on their contingent fee agreement. Evangelina paid only the amount of P680,000.00, equivalent to 20% of the award as attorney's fees, thus, leaving a balance of 10%, plus the award pertaining to the counsel as attorney's fees. In response to the motion filed by Atty. Go, Evangelina filed a comment with motion to release the amount deposited with the NLRC Cashier. In her comment, Evangelina

manifested that Atty. Go's claim for attorney's fees of 40% of the total monetary award was null and void based on Article 111 of the Labor Code. On February 14, 2005, the LA issued an Order 7 granting Atty. Go's motion, the fallo of which reads: WHEREFORE, premises considered, and further considering the substitute complainant's initial payment of 20% to movant-counsel of the monetary claims as paid, let the balance or unpaid twenty (20%) per cent of attorney's fees due movantcounsel (or the amount of P839,587.39) be recorded as lien upon all the monies that may still be paid to substitute complainant Evangelina Masmud. IESTcD Accordingly, the NLRC Cashier is directed to pay movant-counsel the amount of P677,589.96 which is currently deposited therein to partially satisfy the lien. SO ORDERED. 8 Evangelina questioned the February 14, 2005 Order of the LA before the NLRC. On January 31, 2006, the NLRC issued a Resolution 9 dismissing the appeal for lack of merit. Evangelina then elevated the case to the CA via a petition for certiorari. 10 On October 31, 2007, the CA rendered a Decision 11 partially granting the petition. The dispositive portion of the decision reads: WHEREFORE, the petition is PARTIALLY GRANTED. The Resolutions dated January 31, 2006 and July 18, 2006 are hereby AFFIRMED with MODIFICATION in that the Attorney's fees of respondent Atty. Rolando B. Go, Jr. is declared fully compensated by the amount of P1,347,950.11 that he has already received. SO ORDERED. 12 Evangelina filed a motion for reconsideration. However, on June 6, 2008, the CA issued a Resolution 13 denying the motion for reconsideration for lack of merit. aTEScI Hence, the instant petition. Evangelina presented this issue, viz.: THE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE ERROR OF LAW IN ITS DECISION DATED 31 OCTOBER 2007 AND RESOLUTION DATED 6 JUNE 2008 INSOFAR AS IT UPHOLDS RESPONDENT LAWYER'S CLAIM OF FORTY PERCENT (40%) OF THE MONETARY AWARD IN A LABOR CASE AS ATTORNEY'S FEES. 14 In effect, petitioner seeks affirmance of her conviction that the legal compensation of a lawyer in a labor proceeding should be based on Article 111 of the Labor Code.

There are two concepts of attorney's fees. In the ordinary sense, attorney's fees represent the reasonable compensation paid to a lawyer by his client for the legal services rendered to the latter. On the other hand, in its extraordinary concept, attorney's fees may be awarded by the court as indemnity for damages to be paid by the losing party to the prevailing party, 15 such that, in any of the cases provided by law where such award can be made, e.g., those authorized in Article 2208 of the Civil Code, the amount is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. 16 AIDTHC Here, we apply the ordinary concept of attorney's fees, or the compensation that Atty. Go is entitled to receive for representing Evangelina, in substitution of her husband, before the labor tribunals and before the court. Evangelina maintains that Article 111 of the Labor Code is the law that should govern Atty. Go's compensation as her counsel and assiduously opposes their agreed retainer contract. Article 111 of the said Code provides: ART. 111. Attorney's fees. (a) In cases of unlawful withholding of wages the culpable party may be assessed attorney's fees equivalent to ten percent of the amount of the wages recovered. Contrary to Evangelina's proposition, Article 111 of the Labor Code deals with the extraordinary concept of attorney's fees. It regulates the amount recoverable as attorney's fees in the nature of damages sustained by and awarded to the prevailing party. It may not be used as the standard in fixing the amount payable to the lawyer by his client for the legal services he rendered. 17 In this regard, Section 24, Rule 138 of the Rules of Court should be observed in determining Atty. Go's compensation. The said Rule provides: SEC. 24. Compensation of attorneys; agreement as to fees. An attorney shall be entitled to have and recover from his client no more than a reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionable or unreasonable. 18 DCcIaE The retainer contract between Atty. Go and Evangelina provides for a contingent fee. The contract shall control in the determination of the amount to be paid, unless found by the court to be unconscionable or unreasonable. 19 Attorney's fees are

unconscionable if they affront one's sense of justice, decency or reasonableness. 20 The decree of unconscionability or unreasonableness of a stipulated amount in a contingent fee contract will not preclude recovery. It merely justifies the fixing by the court of a reasonable compensation for the lawyer's services. 21 The criteria found in the Code of Professional Responsibility are also to be considered in assessing the proper amount of compensation that a lawyer should receive. Canon 20, Rule 20.01 of the said Code provides: CANON 20 A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES. Rule 20.01. A lawyer shall be guided by the following factors in determining his fees: (a) (b) (c) (d) The time spent and the extent of the services rendered or required; The novelty and difficulty of the question involved; The importance of the subject matter; The skill demanded; IHCSTE

(e) The probability of losing other employment as a result of acceptance of the proffered case; (f) The customary charges for similar services and the schedule of fees of the IBP Chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) (i) (j) The contingency or certainty of compensation; The character of the employment, whether occasional or established; and The professional standing of the lawyer.

Contingent fee contracts are subject to the supervision and close scrutiny of the court in order that clients may be protected from unjust charges. 22 The amount of contingent fees agreed upon by the parties is subject to the stipulation that counsel will be paid for his legal services only if the suit or litigation prospers. A much higher compensation is allowed as contingent fees because of the risk that the lawyer may get nothing if the suit fails. 23 The Court finds nothing illegal in the contingent fee contract between Atty. Go and Evangelina's husband. The CA committed no error of law when it awarded the attorney's fees of Atty. Go and allowed him to receive an equivalent of 39% of the monetary award. ITCcAD The issue of the reasonableness of attorney's fees is a question of fact. Well-settled is the rule that conclusions and findings of fact of the CA are entitled to great weight on

appeal and will not be disturbed except for strong and cogent reasons which are absent in the case at bench. The findings of the CA, which are supported by substantial evidence, are almost beyond the power of review by the Supreme Court. 24 Considering that Atty. Go successfully represented his client, it is only proper that he should receive adequate compensation for his efforts. Even as we agree with the reduction of the award of attorney's fees by the CA, the fact that a lawyer plays a vital role in the administration of justice emphasizes the need to secure to him his honorarium lawfully earned as a means to preserve the decorum and respectability of the legal profession. A lawyer is as much entitled to judicial protection against injustice or imposition of fraud on the part of his client as the client is against abuse on the part of his counsel. The duty of the court is not alone to ensure that a lawyer acts in a proper and lawful manner, but also to see that a lawyer is paid his just fees. With his capital consisting of his brains and with his skill acquired at tremendous cost not only in money but in expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of his client to escape payment of his just compensation. It would be ironic if after putting forth the best in him to secure justice for his client, he himself would not get his due. 25 cETDIA WHEREFORE, in view of the foregoing, the Decision dated October 31, 2007 and the Resolution dated June 6, 2008 of the Court of Appeals in CA-G.R. SP No. 96279 are hereby AFFIRMED. SO ORDERED. EN BANC [G.R. No. 167173. December 27, 2007.] STANDARD CHARTERED BANK (Philippine Branch), PAUL SIMON MORRIS, SUNDARA RAMESH, OWEN BELMAN, SANJAY AGGARWAL, RAJAMANI CHANDRASHEKAR, MARIVEL GONZALES, MA. ELLEN VICTOR, CHONA G. REYES, ZENAIDA IGLESIAS, RAMONA BERNAD, MICHAELANGELO AGUILAR, and FERNAND TANSINGCO, petitioners, vs. SENATE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, as represented by its Chairperson, HON. EDGARDO J. ANGARA, respondent. DECISION NACHURA, J p: Before us is a Petition for Prohibition (With Prayer for Issuance of Temporary Restraining Order and/or Injunction) dated and filed on March 11, 2005 by petitioners against respondent Senate Committee on Banks, Financial Institutions and Currencies, as represented by its Chairperson Edgardo J. Angara (respondent). ITcCSA

Petitioner Standard Chartered Bank (SCB)-Philippines is an institution incorporated in England with limited liability and is licensed to engage in banking, trust, and other related operations in the Philippines. Petitioners Paul Simon Morris, Sundara Ramesh, Owen Belman, Sanjay Aggarwal, Rajamani Chandrashekar, Marivel Gonzales, Ma. Ellen Victor, Chona G. Reyes, Zenaida Iglesias, Ramona Bernad, Michaelangelo Aguilar, and Fernand Tansingco are the Chief Executive Officer, Chief Operations Officer, Country Head of Consumer Banking, General Manager for Credit Card and Personal Loans, Chief Financial Officer, Legal and Compliance Officer, former Trust and Investment Services Head, Country Tax Officer, Head of Corporate Affairs, Head of Banking Services, Head of Client Relationships, and the Head of Global Markets of SCB-Philippines, respectively. Respondent, on the other hand, is one of the permanent committees of the Senate of the Philippines. The petition seeks the issuance of a temporary restraining order (TRO) to enjoin respondent from (1) proceeding with its inquiry pursuant to Philippine Senate (P.S.) Resolution No. 166; (2) compelling petitioners who are officers of petitioner SCBPhilippines to attend and testify before any further hearing to be conducted by respondent, particularly that set on March 15, 2005; and (3) enforcing any holddeparture order (HDO) and/or putting the petitioners on the Watch List. It also prays that judgment be rendered (1) annulling the subpoenae ad testificandum and duces tecum issued to petitioners, and (2) prohibiting the respondent from compelling petitioners to appear and testify in the inquiry being conducted pursuant to P.S. Resolution No. 166. ESTcIA The facts are as follows: On February 1, 2005, Senator Juan Ponce Enrile, Vice Chairperson of respondent, delivered a privilege speech entitled "Arrogance of Wealth" 1 before the Senate based on a letter from Atty. Mark R. Bocobo denouncing SCB-Philippines for selling unregistered foreign securities in violation of the Securities Regulation Code (R.A. No. 8799) and urging the Senate to immediately conduct an inquiry, in aid of legislation, to prevent the occurrence of a similar fraudulent activity in the future. Upon motion of Senator Francis Pangilinan, the speech was referred to respondent. Prior to the privilege speech, Senator Enrile had introduced P.S. Resolution No. 166, 2 to wit: RESOLUTION DIRECTING THE COMMITTEE ON BANKS, FINANCIAL INSTITUTIONS AND CURRENCIES, TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO THE ILLEGAL SALE OF UNREGISTERED AND HIGH-RISK SECURITIES BY STANDARD CHARTERED BANK, WHICH RESULTED IN BILLIONS OF PESOS OF LOSSES TO THE INVESTING PUBLIC WHEREAS, Republic Act No. 7721, otherwise known as the "Law Liberalizing the Entry and Scope of Operations of Foreign Banks in the Philippines," was approved on May 18, 1994 to promote greater participation of foreign banks in the Philippine Banking

Industry that will stimulate economic growth and serve as a channel for the flow of funds into the economy; ICDSca WHEREAS, to promote greater competition in the Philippine Banking Industry, foreign banks were accorded the same privileges, allowed to perform the same functions and subjected to the same limitations under relevant banking laws imposed upon domestic banks; WHEREAS, Standard Chartered Bank was among the foreign banks granted the privilege to do business in our country under Republic Act No. 7721; WHEREAS, there are complaints against Standard Chartered Bank whose actions have reportedly defrauded hundreds of Filipino investors of billions of pesos through the sale of unregistered securities in the form of high-risk mutual funds falsely advertised and marketed as safe investment havens; WHEREAS, there are reports that Standard Chartered Bank clearly knew that its actions were violative of Philippine banking and securities laws but cleverly disguised its illegal acts through the use of pro-forma agreements containing waivers of liability in favor of the bank; WHEREAS, there are reports that in the early stages of conducting these questionable activities, the Bangko Sentral ng Pilipinas warned and eventually fined Standard Chartered Bank a measly P30,000 for violating Philippine banking laws; DTcACa WHEREAS, the particular operations of Standard Chartered Bank may constitute "conducting business in an unsafe and unsound manner," punishable under Section 37 of Republic Act No. 7653 and should have drawn the higher penalty of revocation of its quasi-banking license; WHEREAS, Republic Act No. 8791 or the "General Banking Act of 2000" deems a particular act or omission as conducting business in an unsafe and unsound manner as follows: "Section 56.2 The act or omission has resulted or may result in material loss or damage or abnormal risk to the institution's depositors, creditors, investors, stockholders or to the Bangko Sentral or to the public in general." WHEREAS, the sale of unregistered securities is also a clear violation of Republic Act No. 8799 or "The Securities Regulation Code of 2000" which states: "Section 8.1 Securities shall not be sold or offered for sale or distribution within the Philippines, without a registration statement duly filed with and approved by the Commission. Prior to such sale, information on the securities, in such form and with such substance as the Commission may prescribe, shall be made available to each prospective purchaser." EaHDcS

WHEREAS, the Securities and Exchange Commission (SEC) reportedly issued a Ceaseand-Desist Order (CDO) against Standard Chartered Bank for the sale of these unregistered securities but the case was reportedly settled administratively and dismissed after Standard Chartered Bank paid a fine of P7 Million; WHEREAS, the SEC reportedly made an official finding that Standard Chartered Bank actively engaged in promoting and marketing the so-called "Global Third Party Mutual Funds" to the investing public and even set revenue quotas for the sale of these funds; WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to protect the investing public from fraudulent practices;

WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in preventing the conduct of proscribed activities in a manner that would protect the investing public; WHEREAS, there is a need for remedial legislation to address the situation, having in mind the imposition of proportionate penalties to offending entities and their directors, officers and representatives among other additional regulatory measures; 2005jurcd Now, therefore, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, to direct the Committee on Banks, Currencies, and Financial Institutions, to conduct an inquiry, in aid of legislation, into the reported sale of unregistered and high-risk securities by Standard Chartered Bank which resulted in billions of losses to the investing public. Acting on the referral, respondent, through its Chairperson, Senator Edgardo J. Angara, set the initial hearing on February 28, 2005 to investigate, in aid of legislation, the subject matter of the speech and resolution filed by Senator Enrile. Respondent invited petitioners, among others, to attend the hearing, requesting them to submit their written position paper. Petitioners, through counsel, submitted to respondent a letter 3 dated February 24, 2005 presenting their position, particularly stressing that there were cases pending in court allegedly involving the same issues subject of the legislative inquiry, thereby posing a challenge to the jurisdiction of respondent to continue with the inquiry. aAHSEC On February 28, 2005, respondent commenced the investigation. Senator Enrile inquired who among those invited as resource persons were present and who were absent. Thereafter, Senator Enrile moved that subpoenae be issued to those who did not attend the hearing and that the Senate request the Department of Justice, through the Bureau of Immigration and Deportation, to issue an HDO against them

and/or include them in the Bureau's Watch List. Senator Juan Flavier seconded the motion and the motion was approved. Respondent then proceeded with the investigation proper. Towards the end of the hearing, petitioners, through counsel, made an Opening Statement 4 that brought to the attention of respondent the lack of proper authorization from affected clients for the bank to make disclosures of their accounts and the lack of copies of the accusing documents mentioned in Senator Enrile's privilege speech, and reiterated that there were pending court cases regarding the alleged sale in the Philippines by SCBPhilippines of unregistered foreign securities. The February 28, 2005 hearing was adjourned without the setting of the next hearing date. However, petitioners were later served by respondent with subpoenae ad testificandum and duces tecum to compel them to attend and testify at the hearing set on March 15, 2005. Hence, this petition. HDTISa The grounds relied upon by petitioners are as follows: I. THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN CONDUCTING AN INVESTIGATION, PURPORTEDLY IN AID OF LEGISLATION, BUT IN REALITY PROBING INTO THE ISSUE OF WHETHER THE STANDARD CHARTERED BANK HAD SOLD UNREGISTERED FOREIGN SECURITIES IN THE PHILIPPINES. SAID ISSUE HAS LONG BEEN THE SUBJECT OF CRIMINAL AND CIVIL ACTIONS NOW PENDING BEFORE THE COURT OF APPEALS, REGIONAL TRIAL COURT OF PASIG CITY, METROPOLITAN TRIAL COURT OF MAKATI CITY AND THE PROSECUTOR'S OFFICE OF MAKATI CITY. II. THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION BY CONDUCTING AN INVESTIGATION, PURPORTEDLY "IN AID OF LEGISLATION," BUT IN REALITY IN "AID OF COLLECTION" BY A HANDFUL OF TWO (2) CLIENTS OF STANDARD CHARTERED BANK OF LOSSES WHICH WERE FOR THEIR ACCOUNT AND RISK. AT ANY RATE, SUCH COLLECTION IS WITHIN THE PROVINCE OF THE COURT RATHER THAN OF THE LEGISLATURE. EHcaDT III. THE COMMITTEE ACTED WITHOUT JURISDICTION AND/OR ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN COMPELLING PETITIONERS, SOME OF WHOM ARE RESPONDENTS IN THE PENDING CRIMINAL AND CIVIL ACTIONS BROUGHT BY SAID CLIENTS, IN VIOLATION OF PETITIONERS' RIGHT AGAINST SELFINCRIMINATION AND RIGHT TO PURSUE AND DEFEND THEIR CAUSE IN COURT RATHER THAN ENGAGE IN TRIAL BY PUBLICITY A CLEAR VIOLATION OF DUE PROCESS, RIGHT TO PRIVACY AND TO TRAVEL.

IV. THE COMMITTEE ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION BY DISREGARDING ITS OWN RULES. 5 Petitioners argue that respondent has no jurisdiction to conduct the inquiry because its subject matter is the very same subject matter of the following cases, to wit: STHDAc (a) CA-G.R. SP No. 85078, entitled "Manuel V. Baviera vs. Hon. Esperanza P. Rosario, et al., pending before the 9th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the dismissal by the Department of Justice of his complaint against Standard Chartered Bank and its officers accusing them of SELLING UNREGISTERED FOREIGN SECURITIES IN VIOLATION OF P.D. NO. 1869 (SYNDICATED ESTAFA) AND ARTICLE 315 OF THE REVISED PENAL CODE. (b) CA-G.R. SP No. 86200, entitled "Manuel V. Baviera vs. Hon. Rafael Buenaventura, et al.", pending before the 15th Division of the Court of Appeals. In the petition, Mr. Baviera seeks to annul and set aside the termination for lack of probable cause by the Anti-Money Laundering Council ("AMLC") of the investigation of Standard Chartered Bank for money laundering activities BY SELLING UNREGISTERED FOREIGN SECURITIES. (c) CA-G.R. SP No. 87328, entitled "Manuel V. Baviera vs. Hon. Esperanza Paglinawan Rozario, et al.," pending before the 16th Division of the Court of Appeals. The petition seeks to annul and set aside the dismissal by the Department of Justice of Mr. Baviera's complaint accusing SCB and its officers of violation of the Securities Regulation Code by SELLING UNREGISTERED FOREIGN SECURITIES. (d) Civil Case No. 70173, entitled "Mr. Noel G. Sanchez, et al. vs. Standard Chartered Bank," pending before Branch 155 of the Regional Trial Court of Pasig City. Plaintiff seeks damages and recovery of their investment accusing the bank of SELLING UNREGISTERED FOREIGN SECURITIES. ETCcSa (e) Criminal Case No. 332034, entitled "People of the Philippines vs. Manuel V. Baviera," pending before Branch 64 of the Metropolitan Trial Court of Makati City. Petitioner Morris is the private complainant in this information for extortion or blackmail against Mr. Baviera for demanding the payment of US$2 Million with the threat to EXPOSE THE BANK'S "LARGE SCALE SCAM" CONSISTING [OF] ILLEGAL SELLING OF UNREGISTERED FOREIGN SECURITIES BY THE BANK, before various government offices, such as the Department of Justice, the BIR, Bangko Sentral ng Pilipinas, Regional Trial Courts, and both houses of Congress. (f) Criminal Case No. 331395, entitled "People of the Philippines vs. Manuel V. Baviera," pending before Branch 64 of the Metropolitan Trial Court of Makati City. Petitioners Victor and Chona Reyes are the private complainants in this information

for perjury committed by Mr. Baviera in securing a hold departure order against the petitioners herein from the Department of Justice for their alleged involvement in syndicated estafa and swindling BY SELLING UNREGISTERED FOREIGN SECURITIES. (g) I.S. No. 2004-B-2279-80, entitled "Aurelio Litonjua III and Aurelio Litonjua, Jr. vs. Antonette de los Reyes, et al.," pending before the Office of the Prosecutor, Makati City. This is a criminal complaint accusing SCB and its officers of estafa for SELLING UNREGISTERED FOREIGN SECURITIES. 6 IHEAcC Citing Bengzon, Jr. v. Senate Blue Ribbon Committee, 7 the petitioners claim that since the issue of whether or not SCB-Philippines illegally sold unregistered foreign securities is already preempted by the courts that took cognizance of the foregoing cases, the respondent, by this investigation, would encroach upon the judicial powers vested solely in these courts. The argument is misplaced. Bengzon does not apply squarely to petitioners' case. It is true that in Bengzon, the Court declared that the issue to be investigated was one over which jurisdiction had already been acquired by the Sandiganbayan, and to allow the [Senate Blue Ribbon] Committee to investigate the matter would create the possibility of conflicting judgments; and that the inquiry into the same justiciable controversy would be an encroachment on the exclusive domain of judicial jurisdiction that had set in much earlier. To the extent that, in the case at bench, there are a number of cases already pending in various courts and administrative bodies involving the petitioners, relative to the alleged sale of unregistered foreign securities, there is a resemblance between this case and Bengzon. However, the similarity ends there. cCSEaA Central to the Court's ruling in Bengzon that the Senate Blue Ribbon Committee was without any constitutional mooring to conduct the legislative investigation was the Court's determination that the intended inquiry was not in aid of legislation. The Court found that the speech of Senator Enrile, which sought such investigation contained no suggestion of any contemplated legislation; it merely called upon the Senate to look into possible violations of Section 5, Republic Act No. 3019. Thus, the Court held that the requested probe failed to comply with a fundamental requirement of Section 21, Article VI of the Constitution, which states: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. Accordingly, we stopped the Senate Blue Ribbon Committee from proceeding with the legislative investigation in that case.

Unfortunately for the petitioners, this distinguishing factual milieu in Bengzon does not obtain in the instant case. P.S. Resolution No. 166 is explicit on the subject and nature of the inquiry to be (and already being) conducted by the respondent Committee, as found in the last three Whereas clauses thereof, viz.: HEacAS WHEREAS, existing laws including the Securities Regulation Code seem to be inadequate in preventing the sale of unregistered securities and in effectively enforcing the registration rules intended to protect the investing public from fraudulent practices;

WHEREAS, the regulatory intervention by the SEC and BSP likewise appears inadequate in preventing the conduct of proscribed activities in a manner that would protect the investing public; WHEREAS, there is a need for remedial legislation to address the situation, having in mind the imposition of proportionate penalties to offending entities and their directors, officers and representatives among other additional regulatory measures; (emphasis supplied) The unmistakable objective of the investigation, as set forth in the said resolution, exposes the error in petitioners' allegation that the inquiry, as initiated in a privilege speech by the very same Senator Enrile, was simply "to denounce the illegal practice committed by a foreign bank in selling unregistered foreign securities . . . ." This fallacy is made more glaring when we consider that, at the conclusion of his privilege speech, Senator Enrile urged the Senate "to immediately conduct an inquiry, in aid of legislation, so as to prevent the occurrence of a similar fraudulent activity in the future." AaSIET Indeed, the mere filing of a criminal or an administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or an administrative investigation. As succinctly stated in the landmark case Arnault v. Nazareno 8 [T]he power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it.

Neither can the petitioners claim that they were singled out by the respondent Committee. The Court notes that among those invited as resource persons were officials of the Securities and Exchange Commission (SEC) and the Bangko Sentral ng Pilipinas (BSP). These officials were subjected to the same critical scrutiny by the respondent relative to their separate findings on the illegal sale of unregistered foreign securities by SCB-Philippines. It is obvious that the objective of the investigation was the quest for remedies, in terms of legislation, to prevent the recurrence of the allegedly fraudulent activity. SETaHC Still, petitioners insist that the inquiry conducted by respondent was, in fact, "in aid of collection." They claim that Atty. Bocobo and Manuel Baviera, the latter a party to the pending court cases cited by petitioners, were only seeking a friendly forum so that they could recover their investments from SCB-Philippines; and that the respondent has allowed itself to be used as the conveniently available vehicle to effect this purpose. However, as correctly pointed out by respondent in its Comment on the petition, Atty. Bocobo did not file a complaint before the Senate for the purpose of recovering his investment. On the contrary, and as confirmed during the initial hearing on February 28, 2005, his letter-complaint humbly requested the Senate to conduct an inquiry into the purportedly illegal activities of SCB-Philippines, with the end view of preventing the future occurrence of any similar fraudulent activity by the banks in general. 9 Baviera, on the other hand, was not a "complainant" but merely a witness in the investigation, invited to testify on the alleged illegal sale of unregistered foreign securities by SCB-Philippines, being one of the supposed victims thereof. The Court further notes that when it denied petitioners' prayer for the issuance of a TRO to restrain the hearing set on March 15, 2005, 10 respondent proceeded with the investigation. On the said date, outraged by petitioners' imputation that it was conducting the investigation "in aid of collection," respondent held petitioners, together with their counsel, Atty. Reynaldo Geronimo, in contempt and ordered their detention for six hours. ISDHEa Petitioners filed a Motion for Partial Reconsideration of this Court's Resolution dated March 14, 2005 only with respect to the denial of the prayer for the issuance of a TRO and/or writ of preliminary injunction, alleging that their being held in contempt was without legal basis, as the phrase "in aid of collection" partakes of an absolutely privileged allegation in the petition. We do not agree. The Court has already expounded on the essence of the contempt power of Congress and its committees in this wise The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot

require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of each other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with affronts committed against its authority or dignity. 11 HTcADC The exercise by Congress or by any of its committees of the power to punish contempt is based on the principle of self-preservation. As the branch of the government vested with the legislative power, independently of the judicial branch, it can assert its authority and punish contumacious acts against it. Such power is sui generis, as it attaches not to the discharge of legislative functions per se, but to the sovereign character of the legislature as one of the three independent and coordinate branches of government. 12 In this case, petitioners' imputation that the investigation was "in aid of collection" is a direct challenge against the authority of the Senate Committee, as it ascribes ill motive to the latter. In this light, we find the contempt citation against the petitioners reasonable and justified. Furthermore, it is axiomatic that the power of legislative investigation includes the power to compel the attendance of witnesses. Corollary to the power to compel the attendance of witnesses is the power to ensure that said witnesses would be available to testify in the legislative investigation. In the case at bench, considering that most of the officers of SCB-Philippines are not Filipino nationals who may easily evade the compulsive character of respondent's summons by leaving the country, it was reasonable for the respondent to request the assistance of the Bureau of Immigration and Deportation to prevent said witnesses from evading the inquiry and defeating its purpose. In any event, no HDO was issued by a court. The BID instead included them only in the Watch List, which had the effect of merely delaying petitioners' intended travel abroad for five (5) days, provided no HDO is issued against them. 13 SICDAa With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, 14 we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as

laid down in Morfe v. Mutuc, 15 there is no infringement of the individual's right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. 16 IHCSET As regards the issue of self-incrimination, the petitioners, officers of SCB-Philippines, are not being indicted as accused in a criminal proceeding. They were summoned by respondent merely as resource persons, or as witnesses, in a legislative inquiry. As distinguished by this Court [An] accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 17 Concededly, this right of the accused against self-incrimination is extended to respondents in administrative investigations that partake of the nature of or are analogous to criminal proceedings. The privilege has consistently been held to extend to all proceedings sanctioned by law; and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 18 However, in this case, petitioners neither stand as accused in a criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded. 19 aHSCcE Petitioners' argument, that the investigation before respondent may result in a recommendation for their prosecution by the appropriate government agencies, such as the Department of Justice or the Office of the Ombudsman, does not persuade. As held in Sinclair v. United States 20 It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its Committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits. . . . It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action.

The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law. TCacIA Except only when it exercises the power to punish for contempt, the respondent, as with the other Committees of the Senate or of the House of Representatives, cannot penalize violators even if there is overwhelming evidence of criminal culpability. Other than proposing or initiating amendatory or remedial legislation, respondent can only recommend measures to address or remedy whatever irregularities may be unearthed during the investigation, although it may include in its Report a recommendation for the criminal indictment of persons who may appear liable. At best, the recommendation, along with the evidence, contained in such a Report would be persuasive, but it is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender. Finally, petitioners sought anew, in their Manifestation and Motion 21 dated June 21, 2006, the issuance by this Court of a TRO and/or writ of preliminary injunction to prevent respondent from submitting its Committee Report No. 75 to the Senate in plenary for approval. However, 16 days prior to the filing of the Manifestation and Motion, or on June 5, 2006, respondent had already submitted the report to the Senate in plenary. While there is no showing that the said report has been approved by the Senate, the subject of the Manifestation and Motion has inescapably become moot and academic. WHEREFORE, the Petition for Prohibition is DENIED for lack of merit. The Manifestation and Motion dated June 21, 2006 is, likewise, DENIED for being moot and academic. cDTCIA SO ORDERED. Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr. and Reyes JJ., concur. Quisumbing, J., is on leave. Leonardo-de Castro, J., took no part. EN BANC [G.R. No. 174340. October 17, 2006.] IN THE MATTER OF THE PETITION FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF CAMILO L. SABIO, petitioners, J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator, vs. HONORABLE SENATOR RICHARD GORDON, in his capacity as Chairman, and the HONORABLE MEMBERS OF

THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC SERVICES of the Senate, HONORABLE SENATOR JUAN PONCE-ENRILE, in his official capacity as Member, HONORABLE MANUEL VILLAR, Senate President, SENATE SERGEANT-AT-ARMS, and the SENATE OF THE PHILIPPINES, respondents. [G.R. No. 174318. October 17, 2006.] PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and CAMILO L. SABIO, Chairman, NARCISO S. NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and NICASIO A. CONTI, Commissioners, MANUEL ANDAL and JULIO JALANDONI, PCGG nominees to Philcomsat Holdings Corporation, petitioners, vs. RICHARD GORDON, in his capacity as Chairman, and MEMBERS OF THE COMMITTEE ON GOVERNMENT CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS OF THE COMMITTEE ON PUBLIC SERVICES, SENATOR JUAN PONCE-ENRILE, in his capacity as member of both said Committees, MANUEL VILLAR, Senate President, THE SENATE SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents. [G.R. No. 174177. October 17, 2006.] PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE, DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA KRISTINA ALOBBA, and JOHNNY TAN, petitioners, vs. SENATE COMMITTEE ON GOVERNMENT CORPORATIONS and PUBLIC ENTERPRISES, its MEMBERS and CHAIRMAN, the HONORABLE SENATOR RICHARD GORDON and SENATE COMMITTEE ON PUBLIC SERVICES, its Members and Chairman, the HONORABLE SENATOR JOKER P. ARROYO, respondents. DECISION SANDOVAL-GUTIERREZ, J p: Two decades ago, on February 28, 1986, former President Corazon C. Aquino installed her regime by issuing Executive Order (E.O.) No. 1, 1 creating the Presidential Commission on Good Government (PCGG). She entrusted upon this Commission the herculean task of recovering the ill-gotten wealth accumulated by the deposed President Ferdinand E. Marcos, his family, relatives, subordinates and close associates. 2 Section 4 (b) of E.O. No. 1 provides that: "No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance." Apparently, the purpose is to ensure PCGG's unhampered performance of its task. 3 Today, the constitutionality of Section 4(b) is being questioned on the ground that it tramples upon the Senate's power to conduct legislative inquiry under Article VI, Section 21 of the 1987 Constitution, which reads:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. ADEaHT The facts are undisputed. On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 4 "directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors." The pertinent portions of the Resolution read: WHEREAS, in the last quarter of 2005, the representation and entertainment expense of the PHC skyrocketed to P4.3 million, as compared to the previous year's mere P106 thousand; WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications Center, Inc. (TCI), where PHC funds are allegedly siphoned; in 18 months, over P73 million had been allegedly advanced to TCI without any accountability report given to PHC and PHILCOMSAT; WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of Philcomsat has precipitately released P265 million and granted P125 million loan to a relative of an executive committee member; to date there have been no payments given, subjecting the company to an estimated interest income loss of P11.25 million in 2004; WHEREAS, there is an urgent need to protect the interest of the Republic of the Philippines in the PHC, PHILCOMSAT, and POTC from any anomalous transaction, and to conserve or salvage any remaining value of the government's equity position in these corporations from any abuses of power done by their respective board of directors; HTCaAD WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of legislation, on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors. Adopted. (Sgd) MIRIAM DEFENSOR SANTIAGO

On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to the Committee on Accountability of Public Officers and Investigations and Committee on Public Services. However, on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was transferred to the Committee on Government Corporations and Public Enterprises. 5 On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455. 6 On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment. 7 At the same time, he invoked Section 4(b) of E.O. No. 1 earlier quoted. On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum, 8 approved by Senate President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No. 455. Similar subpoenae were issued against the directors and officers of Philcomsat Holdings Corporation, namely: Benito V. Araneta, Philip J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L. Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina Alloba and Johnny Tan. 9 Again, Chairman Sabio refused to appear. In his letter to Senator Gordon dated August 18, 2006, he reiterated his earlier position, invoking Section 4(b) of E.O. No. 1. On the other hand, the directors and officers of Philcomsat Holdings Corporation relied on the position paper they previously filed, which raised issues on the propriety of legislative inquiry. DcSEHT Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the authority of Senator Gordon, sent another notice 10 to Chairman Sabio requiring him to appear and testify on the same subject matter set on September 6, 2006. The notice was issued "under the same authority of the Subpoena Ad Testificandum previously served upon (him) last 16 August 2006." Once more, Chairman Sabio did not comply with the notice. He sent a letter 11 dated September 4, 2006 to Senator Gordon reiterating his reason for declining to appear in the public hearing. This prompted Senator Gordon to issue an Order dated September 7, 2006 requiring Chairman Sabio and Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in contempt of the Senate. On September 11, 2006,

they submitted to the Senate their Compliance and Explanation, 12 which partly reads: Doubtless, there are laudable intentions of the subject inquiry in aid of legislation. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods. (Brillantes, Jr., et al. v. Commission on Elections, En Banc [G.R. No. 163193, June 15, 2004]) On this score, Section 4(b) of E.O. No. 1 should not be ignored as it explicitly provides: No member or staff of the Commission shall be required to testify or produce evidence in any judicial legislative or administrative proceeding concerning matters within its official cognizance. With all due respect, Section 4(b) of E.O. No. 1 constitutes a limitation on the power of legislative inquiry, and a recognition by the State of the need to provide protection to the PCGG in order to ensure the unhampered performance of its duties under its charter. E.O. No. 1 is a law, Section 4(b) of which had not been amended, repealed or revised in any way. CTHaSD To say the least, it would require both Houses of Congress and Presidential fiat to amend or repeal the provision in controversy. Until then, it stands to be respected as part of the legal system in this jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995: Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought to 'protect and enforce it without fear or favor,' 4 [Act of Athens (1955)] resist encroachments by governments, political parties, or even the interference of their own personal beliefs.) xxx xxx xxx

Relevantly, Chairman Sabio's letter to Sen. Gordon dated August 19, 2006 pointed out that the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of pending cases before the regular courts, the Sandiganbayan and the Supreme Court (Pending cases include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. No. 89102; b. Philippine Communications Satellite Corporation v. Manuel Nieto, et al.; c. Philippine Communications Satellite Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC, Branch 61, Makati City; d. Philippine Communications Satellite Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil Case No. 04-1049) for which reason they may not be able to testify thereon under the principle of sub judice. The laudable objectives of the PCGG's functions, recognized in several cases

decided by the Supreme Court, of the PCGG will be put to naught if its recovery efforts will be unduly impeded by a legislative investigation of cases that are already pending before the Sandiganbayan and trial courts. CHaDIT In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 [1991]) the Honorable Supreme Court held: ". . . [T]he issues sought to be investigated by the respondent Committee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandiganbayan would not only pose the possibility of conflicting judgments between a legislative committee and a judicial tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted. xxx xxx xxx

IT IS IN VIEW OF THE FOREGOING CONSIDERATIONS that the Commission decided not to attend the Senate inquiry to testify and produce evidence thereat. Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order 13 directing Major General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the Committees' members. On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained. CTDHSE Hence, Chairman Sabio filed with this Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No. 174340. Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, and the PCGG's nominees to Philcomsat Holdings Corporation, Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and prohibition against the same respondents, and also against Senate President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire Senate. The case was docketed as G.R. No. 174318. Meanwhile, Philcomsat Holdings Corporation and its officers and directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba and Johnny Tan filed a petition for certiorari and prohibition against the Senate Committees on Government Corporations and Public

Enterprises and Public Services, their Chairmen, Senators Gordon and Arroyo, and Members. The case was docketed as G.R. No. 174177. In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for certiorari and prohibition) Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier; and the PCGG's nominees Andal and Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the inquiries conducted by respondent Senate Committees are not in aid of legislation; third, the inquiries were conducted in the absence of duly published Senate Rules of Procedure Governing Inquiries in Aid of Legislation; and fourth, respondent Senate Committees are not vested with the power of contempt. cAHIST In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers alleged: first, respondent Senate Committees have no jurisdiction over the subject matter stated in Senate Res. No. 455; second, the same inquiry is not in accordance with the Senate's Rules of Procedure Governing Inquiries in Aid of Legislation; third, the subpoenae against the individual petitioners are void for having been issued without authority; fourth, the conduct of legislative inquiry pursuant to Senate Res. No. 455 constitutes undue encroachment by respondents into justiciable controversies over which several courts and tribunals have already acquired jurisdiction; and fifth, the subpoenae violated petitioners' rights to privacy and against self-incrimination. In their Consolidated Comment, the above-named respondents countered: first, the issues raised in the petitions involve political questions over which this Court has no jurisdiction; second, Section 4(b) has been repealed by the Constitution; third, respondent Senate Committees are vested with contempt power; fourth, Senate's Rules of Procedure Governing Inquiries in Aid of Legislation have been duly published; fifth, respondents have not violated any civil right of the individual petitioners, such as their (a) right to privacy; and (b) right against self-incrimination; and sixth, the inquiry does not constitute undue encroachment into justiciable controversies. During the oral arguments held on September 21, 2006, the parties were directed to submit simultaneously their respective memoranda within a non-extendible period of fifteen (15) days from date. In the meantime, per agreement of the parties, petitioner Chairman Sabio was allowed to go home. Thus, his petition for habeas corpus has become moot. The parties also agreed that the service of the arrest warrants issued against all petitioners and the proceedings before the respondent Senate Committees are suspended during the pendency of the instant cases. 14 Crucial to the resolution of the present petitions is the fundamental issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987 Constitution. On this lone issue hinges the merit of the contention of Chairman Sabio and his Commissioners that their refusal to appear before respondent Senate Committees is justified. With the

resolution of this issue, all the other issues raised by the parties have become inconsequential. ADHCSE Perched on one arm of the scale of justice is Article VI, Section 21 of the 1987 Constitution granting respondent Senate Committees the power of legislative inquiry. It reads: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. On the other arm of the scale is Section 4(b) of E.O. No. 1 limiting such power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding, thus: No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance. To determine whether there exists a clear and unequivocal repugnancy between the two quoted provisions that warrants a declaration that Section 4(b) has been repealed by the 1987 Constitution, a brief consideration of the Congress' power of inquiry is imperative. The Congress' power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Daugherty, 15 cited in Arnault v. Nazareno. 16 In those earlier days, American courts considered the power of inquiry as inherent in the power to legislate. The 1864 case of Briggs v. MacKellar 17 explains the breath and basis of the power, thus: Where no constitutional limitation or restriction exists, it is competent for either of the two bodies composing the legislature to do, in their separate capacity, whatever may be essential to enable them to legislate. . . . It is well-established principle of this parliamentary law, that either house may institute any investigation having reference to its own organization, the conduct or qualification of its members, its proceedings, rights, or privileges or any matter affecting the public interest upon which it may be important that it should have exact information, and in respect to which it would be competent for it to legislate. The right to pass laws, necessarily implies the right to obtain information upon any matter which may become the subject of a law. It is essential to the full and intelligent exercise of the legislative function. . . . In American legislatures the investigation of public matters before committees, preliminary to legislation, or with the view of advising the house appointing the committee is, as a parliamentary usage, well established as it is in England, and the right of either house to compel witnesses to appear and testify before its committee, and to punish for disobedience has been frequently enforced. . . . The right of inquiry, I think, extends

to other matters, in respect to which it may be necessary, or may be deemed advisable to apply for legislative aid. Remarkably, in Arnault, this Court adhered to a similar theory. Citing McGrain, it recognized that the power of inquiry is "an essential and appropriate auxiliary to the legislative function," thus: Although there is no provision in the "Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislation body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it." Dispelling any doubt as to the Philippine Congress' power of inquiry, provisions on such power made their maiden appearance in Article VIII, Section 12 of the 1973 Constitution. 18 Then came the 1987 Constitution incorporating the present Article VI, Section 12. What was therefore implicit under the 1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions. 19 Notably, the 1987 Constitution recognizes the power of investigation, not just of Congress, but also of "any of its committee." This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the mechanisms which the Houses can take in order to effectively perform its investigative function are also available to the committees. 20 It can be said that the Congress' power of inquiry has gained more solid existence and expansive construal. The Court's high regard to such power is rendered more evident in Senate v. Ermita, 21 where it categorically ruled that "the power of inquiry is broad enough to cover officials of the executive branch." Verily, the Court reinforced the doctrine in Arnault that "the operation of government, being a legitimate subject for legislation, is a proper subject for investigation" and that "the power of inquiry is co-extensive with the power to legislate." Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress' power of inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress' power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. 22 It even extends "to government agencies created by Congress and officers whose positions are within the

power of Congress to regulate or even abolish." 23 PCGG belongs to this class. ECTIHa Certainly, a mere provision of law cannot pose a limitation to the broad power of Congress, in the absence of any constitutional basis. Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: "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." The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officers. Such trust extends to all matters within the range of duties pertaining to the office. In other words, public officers are but the servants of the people, and not their rulers. 24 Section 4(b), being in the nature of an immunity, is inconsistent with the principle of public accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other administrative bodies. Instead of encouraging public accountability, the same provision only institutionalizes irresponsibility and nonaccountability. In Presidential Commission on Good Government v. Pea, 25 Justice Florentino P. Feliciano characterized as "obiter" the portion of the majority opinion barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for damages filed against the PCGG and its Commissioners. He eloquently opined: The above underscored portions are, it is respectfully submitted, clearly obiter. It is important to make clear that the Court is not here interpreting, much less upholding as valid and constitutional, the literal terms of Section 4 (a), (b) of Executive Order No. 1. If Section 4 (a) were given its literal import as immunizing the PCGG or any member thereof from civil liability "for anything done or omitted in the discharge of the task contemplated by this Order," the constitutionality of Section 4 (a) would, in my submission, be open to most serious doubt. For so viewed, Section 4 (a) would institutionalize the irresponsibility and non-accountability of members and staff of the PCGG, a notion that is clearly repugnant to both the 1973 and 1987 Constitution and a privileged status not claimed by any other official of the Republic under the 1987 Constitution. . . . . xxx xxx xxx

It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this Court.

Chavez v. Sandiganbayan 26 reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions. cHTCaI Corollarily, Section 4(b) also runs counter to the following constitutional provisions ensuring the people's access to information: Article II, Section 28 Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Article III, Section 7 The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. These twin provisions of the Constitution seek to promote transparency in policymaking and in the operations of the government, as well as provide the people sufficient information to enable them to exercise effectively their constitutional rights. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. In Valmonte v. Belmonte, Jr. 27 the Court explained that an informed citizenry is essential to the existence and proper functioning of any democracy, thus: An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. IcTCHD Consequently, the conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their participation will largely depend on the information gathered and made known to them. In other words, the right to information really goes hand-inhand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government. 28 The cases of Taada v. Tuvera 29 and Legaspi v. Civil Service Commission 30 have recognized a

citizen's interest and personality to enforce a public duty and to bring an action to compel public officials and employees to perform that duty. Section 4(b) limits or obstructs the power of Congress to secure from PCGG members and staff information and other data in aid of its power to legislate. Again, this must not be countenanced. In Senate v. Ermita, 31 this Court stressed: To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. A statute may be declared unconstitutional because it is not within the legislative power to enact; or it creates or establishes methods or forms that infringe constitutional principles; or its purpose or effect violates the Constitution or its basic principles. 32 As shown in the above discussion, Section 4(b) is inconsistent with Article VI, Section 21 (Congress' power of inquiry), Article XI, Section 1 (principle of public accountability), Article II, Section 28 (policy of full disclosure) and Article III, Section 7 (right to public information). HaECDI Significantly, Article XVIII, Section 3 of the Constitution provides: All existing 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. The clear import of this provision is that all existing laws, executive orders, proclamations, letters of instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed. Jurisprudence is replete with decisions invalidating laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances inconsistent with the Constitution. In Pelaez v. Auditor General, 33 the Court considered repealed Section 68 of the Revised Administrative Code of 1917 authorizing the Executive to change the seat of the government of any subdivision of local governments, upon the approval of the 1935 Constitution. Section 68 was adjudged incompatible and inconsistent with the Constitutional grant of limited executive supervision over local governments. In Islamic Da'wah Council of the Philippines, Inc., v. Office of the Executive Secretary, 34 the Court declared Executive Order No. 46, entitled "Authorizing the Office on Muslim Affairs to Undertake Philippine Halal Certification," void for encroaching on the religious freedom of Muslims. In The Province of Batangas v. Romulo, 35 the Court declared some provisions of the General Appropriations Acts

of 1999, 2000 and 2001 unconstitutional for violating the Constitutional precept on local autonomy. And in Ople v. Torres, 36 the Court likewise declared unconstitutional Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference System," for being violative of the right to privacy protected by the Constitution. cETCID These Decisions, and many others, highlight that the Constitution is the highest law of the land. It 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. No act shall be valid, however noble its intentions, if it conflicts with the Constitution." 37 Consequently, this Court has no recourse but to declare Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution. Significantly, during the oral arguments on September 21, 2006, Chairman Sabio admitted that should this Court rule that Section 4(b) is unconstitutional or that it does not apply to the Senate, he will answer the questions of the Senators, thus: CHIEF JUSTICE PANGANIBAN: Okay. Now, if the Supreme Court rules that Sec. 4(b) is unconstitutional or that it does not apply to the Senate, will you answer the questions of the Senators? CHAIRMAN SABIO: Your Honor, my father was a judge, died being a judge. I was here in the Supreme Court as Chief of Staff of Justice Feria. I would definitely honor the Supreme Court and the rule of law. CHIEF JUSTICE PANGANIBAN: You will answer the questions of the Senators if we say that? CHAIRMAN SABIO: Yes, Your Honor. That is the law already as far as I am concerned. cCAIaD With his admission, Chairman Sabio is not fully convinced that he and his Commissioners are shielded from testifying before respondent Senate Committees by Section 4(b) of E.O. No. 1. In effect, his argument that the said provision exempts him and his co-respondent Commissioners from testifying before respondent Senate Committees concerning Senate Res. No. 455 utterly lacks merit. Incidentally, an argument repeated by Chairman Sabio is that respondent Senate Committees have no power to punish him and his Commissioners for contempt of the Senate. The argument is misleading.

Article VI, Section 21 provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. It must be stressed that the Order of Arrest for "contempt of Senate Committees and the Philippine Senate" was approved by Senate President Villar and signed by fifteen (15) Senators. From this, it can be concluded that the Order is under the authority, not only of the respondent Senate Committees, but of the entire Senate. At any rate, Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of Representatives, but also to any of their respective committees. Clearly, there is a direct conferral of power to the committees. Father Bernas, in his Commentary on the 1987 Constitution, correctly pointed out its significance: It should also be noted that the Constitution explicitly recognizes the power of investigation not just of Congress but also of "any of its committees." This is significant because it constitutes a direct conferral of investigatory power upon the committees and it means that the means which the Houses can take in order to effectively perform its investigative function are also available to the Committees. 38 This is a reasonable conclusion. The conferral of the legislative power of inquiry upon any committee of Congress must carry with it all powers necessary and proper for its effective discharge. Otherwise, Article VI, Section 21 will be meaningless. The indispensability and usefulness of the power of contempt in a legislative inquiry is underscored in a catena of cases, foreign and local. STaCcA In the 1821 case of Anderson v. Dunn, 39 the function of the Houses of Congress with respect to the contempt power was likened to that of a court, thus: . . . But the court in its reasoning goes beyond this, and though the grounds of the decision are not very clearly stated, we take them to be: that there is in some cases a power in each House of Congress to punish for contempt; that this power is analogous to that exercised by courts of justice, and that it being the well established doctrine that when it appears that a prisoner is held under the order of a court of general jurisdiction for a contempt of its authority, no other court will discharge the prisoner or make further inquiry into the cause of his commitment. That this is the general rule . . . as regards the relation of one court to another must be conceded. In McGrain, 40 the U.S. Supreme Court held: "Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed." The Court, in Arnault v. Nazareno, 41 sustained the Congress' power of contempt on the basis of this observation.

In Arnault v. Balagtas, 42 the Court further explained that the contempt power of Congress is founded upon reason and policy and that the power of inquiry will not be complete if for every contumacious act, Congress has to resort to judicial interference, thus: The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity. 43 In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, 44 the Court characterized contempt power as a matter of selfpreservation, thus: The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis . . . . Meanwhile, with respect to G.R. No. 174177, the petition of Philcomsat Holdings Corporation and its directors and officers, this Court holds that the respondent Senate Committees' inquiry does not violate their right to privacy and right against selfincrimination. DEIHSa One important limitation on the Congress' power of inquiry is that "the rights of persons appearing in or affected by such inquiries shall be respected." This is just another way of saying that the power of inquiry must be "subject to the limitations placed by the Constitution on government action." As held in Barenblatt v. United States, 45 "the Congress, in common with all the other branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights." First is the right to privacy.

Zones of privacy are recognized and protected in our laws. 46 Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued by civilized men," 47 but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks." 48 Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person's "right to be let alone" or the "right to determine what, how much, to whom and when information about himself shall be disclosed." 49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of communication and correspondence" and further cautions that "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. 50 Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government violate such expectation? The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate on Senate Res. No. 455, particularly "on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors." Obviously, the inquiry focus on petitioners' acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc, 51 the Court, in line with Whalen v. Roe, 52 employed the rational basis relationship test when it held that there was no infringement of the individual's right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration. 53 In Valmonte v. Belmonte, 54 the

Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions. cdasia2005 Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG's efficacy. There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees. Anent the right against self-incrimination, it must be emphasized that this right may be invoked by the said directors and officers of Philcomsat Holdings Corporation only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them." 55 That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. At this juncture, what is important is that respondent Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. Sec. 19 reads: Sec. 19. Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that will incriminate him is propounded to him. However, he may offer to answer any question in an executive session. No person can refuse to testify or be placed under oath or affirmation or answer questions before an incriminatory question is asked. His invocation of such right does not by itself excuse him from his duty to give testimony. cAaETS In such a case, the Committee, by a majority vote of the members present there being a quorum, shall determine whether the right has been properly invoked. If the Committee decides otherwise, it shall resume its investigation and the question or questions previously refused to be answered shall be repeated to the witness. If the latter continues to refuse to answer the question, the Committee may punish him for contempt for contumacious conduct. The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan.

Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose. Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners, will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation. In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455. WHEREFORE, the petition in G.R. No. 174340 for habeas corpus is DISMISSED, for being moot. The petitions in G.R Nos. 174318 and 174177 are likewise DISMISSED. ESHAIC Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. Respondent Senate Committees' power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo L. Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG's nominees to Philcomsat Holdings Corporation, as well as its directors and officers, petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455. SO ORDERED. EN BANC [G.R. No. 174105. April 2, 2009.] REGHIS M. ROMERO II, EDMOND Q. SESE, LEOPOLDO T. SANCHEZ, REGHIS M. ROMERO III, MICHAEL L. ROMERO, NATHANIEL L. ROMERO, and JEROME R. CANLAS, petitioners, vs. SENATOR JINGGOY E. ESTRADA and SENATE COMMITTEE ON LABOR, EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT, respondents. DECISION VELASCO, JR., J p:

At issue once again is Section 21, Article VI of the 1987 Constitution which provides: ISEHTa The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The Case This is a petition for prohibition with application for temporary restraining order (TRO) and preliminary injunction under Rule 65, assailing the constitutionality of the invitations and other compulsory processes issued by the Senate Committee on Labor, Employment, and Human Resources Development (Committee) in connection with its investigation on the investment of Overseas Workers Welfare Administration (OWWA) funds in the Smokey Mountain project. The Facts On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc., received from the Committee an invitation, 1 signed by the Legislative Committee Secretary, which pertinently reads as follows: IaHCAD Dear Mr. Romero: Pursuant to P.S. Resolution No. 537, entitled: "RESOLUTION DIRECTING THE LABOR COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS AND OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86 MILLION" and P.S. Resolution No. 543, entitled: "RESOLUTION DIRECTING THE COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF LEGISLATION, ON THE ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN PRESIDENT FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II BUILDERS OWNER REGHIS ROMERO II", . . . the Committee on Labor, Employment and Human Resources Development chaired by Sen. Jinggoy Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the 23rd day of August 2006 at the Sen. G.T. Pecson Room, 2nd floor, Senate of the Philippines, Pasay City. The inquiry/investigation is specifically intended to aid the Senate in the review and possible amendments to the pertinent provisions of R.A. 8042, "the Migrant Workers Act" and to craft a much needed legislation relative to the stated subject matter and purpose of the aforementioned Resolutions. IaHCAD By virtue of the power vested in Congress by Section 21, Article VI of 1987 Constitution regarding inquiries in aid of legislation, may we have the privilege of inviting you to the said hearing to shed light on any matter, within your knowledge

and competence, covered by the subject matter and purpose of the inquiry. Rest assured that your rights, when properly invoked and not unfounded, will be duly respected. (Emphasis in the original.) In his letter-reply 2 dated August 18, 2006, petitioner Romero II requested to be excused from appearing and testifying before the Committee at its scheduled hearings of the subject matter and purpose of Philippine Senate (PS) Resolution Nos. 537 and 543. He predicated his request on grounds he would later substantially reiterate in this petition for prohibition. On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that his request, being unmeritorious, was denied. 3 On the same date, invitations were sent to each of the other six petitioners, then members of the Board of Directors of R-II Builders, Inc., requesting them to attend the September 4, 2006 Committee hearing. The following day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the service of a subpoena ad testificandum 4 on petitioner Romero II directing him to appear and testify before the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate resolutions. The Committer later issued separate subpoenas 5 to other petitioners, albeit for a different hearing date. CcaDHT On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105, seeking to bar the Committee from continuing with its inquiry and to enjoin it from compelling petitioners to appear before it pursuant to the invitations thus issued. Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at the September 4, 2006 Committee investigation. Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO 6 alleging, among others, that: (1) he answered questions concerning the investments of OWWA funds in the Smokey Mountain project and how much of OWWA's original investment had already been paid; (2) when Senator Estrada called on Atty. Francisco I. Chavez, as resource person, the latter spoke of the facts and issues he raised with the Court in Chavez v. National Housing Authority, 7 none of which were related to the subject of the inquiry; and (3) when Senator Estrada adjourned the investigation, he asked petitioners Romero II and Canlas to return at the resumption of the investigation. The manifestation was followed by the filing on September 19, 2006 of another urgent motion for a TRO in which petitioners imputed to the Committee the intention to harass them as, except for petitioner Romero II, none of them had even been mentioned in relation to the subject of the investigation. TCcDaE Meanwhile, respondents, in compliance with our September 5, 2006 Resolution that ordered them to submit a comment on the original plea for a TRO, interposed an

opposition, 8 observing that the Senate's motives in calling for an investigation in aid of legislation were a political question. They also averred that the pendency of Chavez "is not sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry into the matters alleged in the petition." In this petition, petitioners in gist claim that: (1) the subject matter of the investigation is sub judice owing to the pendency of the Chavez petition; (2) since the investigation has been intended to ascertain petitioners' criminal liability for plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and testify in violation of their rights against self-incrimination; and (4) unless the Court immediately issues a TRO, some or all of petitioners would be in danger of being arrested, detained, and forced to give testimony against their will, before the Court could resolve the issues raised in G.R. No. 164527. In their Comment dated October 17, 2006, 9 respondents made a distinction between the issues raised in Chavez and the subject matter of the Senate resolutions, nixing the notion of sub judice that petitioners raised at every possible turn. Respondents averred that the subject matter of the investigation focused on the alleged dissipation of OWWA funds and the purpose of the probe was to aid the Senate determine the propriety of amending Republic Act No. 8042 or The Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the future. They likewise raised the following main arguments: (1) the proposed resolutions were a proper subject of legislative inquiry; and (2) petitioners' right against self-incrimination was well-protected and could be invoked when incriminating questions were propounded. SHacCD On December 28, 2006, petitioners filed their Reply 10 reiterating the arguments stated in their petition, first and foremost of which is: Whether or not the subject matter of the Committee's inquiry is sub judice. The Court's Ruling The Court resolves to dismiss the instant petition. The Subject Matter of the Senate Inquiry Is no Longer Sub Judice Petitioners contend that the subject matter of the legislative inquiry is sub judice in view of the Chavez petition. The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court. 11 The rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez: AIHTEa [I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the

determination of such facts should be uninfluenced by bias, prejudice or sympathies. 12 Chavez, assuming for argument that it involves issues subject of the respondent Committee's assailed investigation, is no longer sub judice or "before a court or judge for consideration". 13 For by an en banc Resolution dated July 1, 2008, the Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the petitioner in Chavez, for reconsideration of the Decision of the Court dated August 15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect of Chavez and resist, on that ground, the assailed congressional invitations and subpoenas. The sub judice issue has been rendered moot and academic by the supervening issuance of the en banc Resolution of July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy, so that a determination of the issue would be without practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the petition. 14 Courts decline jurisdiction over such cases or dismiss them on the ground of mootness, save in certain exceptional instances, 15 none of which, however, obtains under the premises. aDSHIC Thus, there is no more legal obstacle on the ground of sub judice, assuming it is invocable to the continuation of the Committee's investigation challenged in this proceeding. At any rate, even assuming hypothetically that Chavez is still pending final adjudication by the Court, still, such circumstance would not bar the continuance of the committee investigation. What we said in Sabio v. Gordon suggests as much: The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution or administrative action should not stop or abate any inquiry to carry out a legislative purpose. 16 A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively; 17 and to determine whether there is a need to improve existing laws or enact new or remedial legislation, 18 albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. Standard Chartered Bank (Philippine Branch) v. Senate Committee on Banks, Financial

Institutions and Currencies (Standard Chartered Bank) provides the following reason: cHTCaI [T]he mere filing of a criminal or an administrative complaint before a court or quasijudicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or administrative investigation. As succinctly stated in . . . Arnault v. Nazareno [T]he power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who possess it. 19 While Sabio and Standard Chartered Bank advert only to pending criminal and administrative cases before lower courts as not posing a bar to the continuation of a legislative inquiry, there is no rhyme or reason that these cases' doctrinal pronouncement and their rationale cannot be extended to appealed cases and special civil actions awaiting final disposition before this Court. CIDcHA The foregoing consideration is not all. The denial of the instant recourse is still indicated for another compelling reason. As may be noted, PS Resolution Nos. 537 and 543 were passed in 2006 and the letter-invitations and subpoenas directing the petitioners to appear and testify in connection with the twin resolutions were sent out in the month of August 2006 or in the past Congress. On the postulate that the Senate of each Congress acts separately and independently of the Senate before and after it, the aforesaid invitations and subpoenas are considered functos oficio and the related legislative inquiry conducted is, for all intents and purposes, terminated. In this regard, the Court draws attention to its pronouncements embodied in its Resolution of September 4, 2008 in G.R. No. 180643 entitled Neri v. Senate Committee on Accountability of Public Officers and Investigations: Certainly, . . . the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business, the Senate of each Congress acts separately and independently of the Senate before it. The Rules of the Senate itself confirms this when it states: DSEaHT xxx xxx xxx

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present[ed] for the first time. Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. . . . (Emphasis added.) TaCDcE Following the lessons of Neri, as reiterated in Garcillano v. The House of Representatives Committees on Public Information, Public Order and Safety, et al., 20 it can very well be stated that the termination of the assailed investigations has veritably mooted the instant petition. This disposition becomes all the more impeccable, considering that the Senate of the present Congress has not, per available records, opted to take up anew, as an unfinished matter, its inquiry into the investment of OWWA funds in the Smokey Mountain project. With the foregoing disquisition, the Court need not belabor the other issues raised in this recourse. Suffice it to state that when the Committee issued invitations and subpoenas to petitioners to appear before it in connection with its investigation of the aforementioned investments, it did so pursuant to its authority to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the outset. And the Court has no authority to prohibit a Senate committee from requiring persons to appear and testify before it in connection with an inquiry in aid of legislation in accordance with its duly published rules of procedure. 21 Sabio emphasizes the importance of the duty of those subpoenaed to appear before the legislature, even if incidentally incriminating questions are expected to be asked: cACDaH Anent the right against self-incrimination, it must be emphasized that ["this right may be] invoked by the said directors and officers of Philcomsat . . . only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them." That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. xxx xxx xxx

Let it be stressed at this point that so long as the constitutional rights of witnesses . . . will be respected by respondent Senate Committees, it [is] their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation. 22 (Emphasis supplied.) DHESca As a matter of long and sound practice, the Court refrains from touching on the issue of constitutionality except when it is unavoidable and is the very lis mota 23 of the controversy. So it must be here. Indeed, the matter of the constitutionality of the assailed Committee invitations and subpoenas issued vis--vis the investigation conducted pursuant to PS Resolution Nos. 537 and 543 has ceased to be a justiciable controversy, having been rendered moot and academic by supervening events heretofore indicated. In short, there is no more investigation to be continued by virtue of said resolutions; there is no more investigation the constitutionality of which is subject to a challenge. WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio Morales, Tinga, Chico-Nazario, Nachura, Leonardo-de Castro, Brion and Peralta, JJ., concur. Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Rollo, p. 39. Id. at 41. Id. at 236. Id. at 261. Id. at 280-293. Id. at 264. G.R. No. 164527, August 15, 2007, 530 SCRA 235. Rollo, pp. 296-322. Id. at 335. Id. at 503. SCHcaT ITSCED

11. Sec. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon . . . and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: xxx xxx xxx

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice. 12. G.R. Nos. L-75209 & L-78791, September 30, 1987, 154 SCRA 542, 546; citing In Re Stolen, 216 N.W. 127. 13. S.H. Gifis, LAW DICTIONARY 492 (4th ed., 1996).

14. Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426 SCRA 91, 97. ITCcAD 15. David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA 160, 214-215: Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review. 16. 17. G.R. Nos. 174340, 174318 & 174177, October 17, 2006, 504 SCRA 704, 739. Arnault v. Nazareno, 87 Phil. 29 (1950).

18. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, March 25, 2008, 549 SCRA 77, 168; citing W. Keefe & M. Ogul, THE AMERICAN LEGISLATIVE PROCESS: CONGRESS AND THE STATES 20-23 (4th ed., 1977). EcHaAC 19. 20. G.R. No. 167173, December 27, 2007, 541 SCRA 456, 471-472. G.R. Nos. 170338 & 179275, December 23, 2008.

21. The Senate Blue Ribbon Committee v. Majaducon, G.R. Nos. 136760 & 138378, July 29, 2003, 407 SCRA 356, 362-363. 22. 23. Supra note 16, at 739-740; citing Cruz, CONSTITUTIONAL LAW 307 (2003). The beginning of an action or suit. DcCIAa

C o p y r i g h t 2 0 0 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 173931 April 2, 2009 ALICIA D. TAGARO vs. ESTER A. GARCIA EN BANC [G.R. No. 173931. April 2, 2009.] ALICIA D. TAGARO, petitioner, vs. ESTER A. GARCIA, Chairperson of the Commission on Higher Education (CHED), represented by the present chair CARLITO G. PUNO, respondent. DECISION TINGA, J p: This Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeks the reversal of the 30 May 2006 Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 92487, as well as the 30 July 2006 Resolution 3 which denied reconsideration. The assailed decision reversed Civil Service Commission Resolution Nos. 050801 and 051641 which respectively declared illegal the removal of petitioner Alicia D. Tagaro from the office of Director III at the Higher Education Development Fund Staff, and denied reconsideration. ASEcHI Undisputed are the following operative facts. 2009jur Petitioner Alicia D. Tagaro was appointed on 16 December 1996 as Director II of the Higher Education Development Fund (HEDF) at the Commission on Higher Education (CHED). 4 The appointment 5 was issued by then President Fidel V. Ramos supposedly under the authority of Section 11 6 of Republic Act (R.A.) No. 7722. 7 Later on, CHED Chairman Angel Alcala (Alcala) requested the Department of Budget and Management (DBM) to create a Director III position that would serve as the head of the HEDF so that the existing Director II would be the assistant head. The DBM opined that considering the financial accountability and responsibility attached to the position of HEDF head, the existing Director II position may be reclassified and upgraded to Director III. 8 HDAaIc

Thus, on 24 March 1999, Alcala formally requested the DBM for the reclassification of director positions in the CHED as well as the issuance of the corresponding special allotment release order and notice of cash allocation. 9 Acting favorably on the request, the DBM issued a Notice of Organization, Staffing and Compensation Action (NOSCA) 10 which provides that the position classifications and compensation modifications embodied therein "were approved effective not earlier than 1 May 1999." 11 The DBM Personal Services Itemization and Plantilla of Personnel 12 as of 1

May 1999 showed that petitioner's position had already been reclassified to Director III. CHED Executive Director Roger P. Perez (Perez), in a 14 December 1999 Memorandum, 13 then told all the directors concerned to submit the following papers as a condition for the issuance of a new presidential appointment: (a) clearances from the Ombudsman, the National Bureau of Investigation and the Civil Service Commission; (b) copies of the latest income tax returns and statements of assets and liabilities; (c) a certification of lack of any pending administrative case; and (d) an updated CSC Form 212. AHSEaD Petitioner did not comply with the directive. Nevertheless Perez informed her, via a Notice of Salary Adjustment 14 (NOSA) dated 29 December 1999, that her salary effective 20 August 1999 had already been adjusted to that corresponding to Director III with salary grade 27. On 27 January 2000, however, Perez issued another NOSA expressly superseding the previous one and showing that petitioner's salary adjustment would take effect on 1 May 1999. 15 On 5 May 2000, respondent Ester A. Garcia (Garcia), who replaced Perez as CHED chairman, sought clarification from the Office of the President whether there was a need for new appointments in favor of the incumbents of the reclassified positions in the CHED. 16 The Office of the Executive Secretary responded in the affirmative. 17 The controversy started when Garcia issued two separate Memoranda both dated 25 July 2000, one directed to petitioner 18 and the other to the chief of the CHED Human Resource Management Division (CHED-HRMD). 19 The memoranda stated that a new appointment to the reclassified position of Director III was indispensable and that since petitioner had not been issued one, she must then refund not only the salary differential she had already received as Director III between 1 May 1999 and 31 July 2000 but also the corresponding allowances, bonuses and cash gifts. Petitioner was also advised that beginning 1 August 2000, the CHED-HRMD as directed would roll back her salary to that corresponding to THAT OF Director II until her appointment to the reclassified position shall have been duly issued. In the same memorandum addressed to her, petitioner was once again required to submit the required documents and papers listed in the 14 December 1999 Memorandum; 20 yet again, she did not comply. ISTHED On 2 October 2000, petitioner, through her counsel, demanded that her salary be upgraded to that of a Director III effective 1 May 1999 without need of a new appointment; otherwise, she would be constrained to take appropriate legal measures on the matter. 21 On 10 October 2000, Garcia, in a letter informed petitioner that it could not be done simply because a new appointment to the reclassified position was needed as opined by both the Civil Service Commission (CSC) and the Office of the President. 22 2009jur Petitioner was thus constrained to institute with the Regional Trial Court (RTC) of Quezon City a special civil action for certiorari, prohibition and mandamus with

damages (the RTC Petition) 23 claiming that the issuance of a new appointment was no longer necessary; that the CHED had the ministerial duty to implement NOSCA No. 0001999-04-044; that the respondents therein committed grave abuse of discretion when they rolled back her salary to that corresponding to Director II; and that she was entitled to the salary, bonuses and allowances attached to the office of Director III. 24 TcEAIH While the RTC petition was pending, however, the CHED passed Resolution No. 0082001 25 dated 8 January 2001. This resolution considered the position of Director II in the HEDFS as already abolished and non-existing, and it designated Dr. Manuel D. Punzal (Punzal), then oversight commissioner, to serve as officer-in-charge of the HEDFS until a regular Director III shall have been appointed and qualified considering that by refusing to comply with the requirements for the issuance of an appointment petitioner could then be deemed as no longer interested in the office of Director III. On 29 January 2001, petitioner filed an appeal from the said resolution before the CSC (the first CSC Appeal). On 12 February 2001, the respondents in the RTC Petition filed a motion to dismiss on the following grounds: that the trial court had no jurisdiction over the case; that petitioner failed to exhaust administrative remedies prior to the filing of the petition; that the petition was not the proper remedy under the circumstances; and that by law there was a need for the issuance of a new appointment to the office of Director III in favor of petitioner. 26 aSIETH Petitioner, it appears, had continued reporting for work at the HEDF. Her presence therein allegedly had caused serious difficulties and problems prejudicial to the delivery of public service as she was purportedly exhibiting acts disruptive of the operations of the office. Punzal brought such fact to the attention of Garcia who reacted by issuing a Memorandum Order 27 dated 7 June 2001 which contained a directive principally addressed to Punzal to bar petitioner's entry into the CHED main office and premises. This measure prompted petitioner to file an Urgent Motion for Preliminary Injunction with a Prayer for a Temporary Restraining Order 28 before the same trial court where the RTC petition was pending. The said motion essentially questioned the legality of the issuance of the CHED's 7 June 2001 Memorandum Order. aEHTSc The trial court, however, dismissed the RTC petition in an Order 29 dated 17 July 2001 based on failure to exhaust administrative remedies. Petitioner then filed a petition for review of the trial court's order of dismissal with the Court of Appeals. The petition, docketed as CA-G.R. SP No. 66446, 30 pointed out that it was error for the trial court to dismiss the petition inasmuch as the issue involved was one purely of law and that the same concerned the patently unlawful acts of the respondents therein which thus removed the case from the rule of exhaustion. While this petition was pending before the Court of Appeals, however, petitioner on 22 August 2001,

filed before the CSC a pleading she denominated as "Administrative Appeal" (the second CSC Appeal) assailing the same 7 June 2001 Memorandum Order and reiterating the same basic argument raised against the said memorandum order in her Urgent Motion for Preliminary Injunction previously filed with the trial court i.e., that the same did not have any legal basis. In its 27 February 2003 Decision, 31 the Court of Appeals dismissed the appeal on the finding that petitioner had engaged in forum-shopping by principally questioning the validity of the memorandum order, first, before the trial court and then later, before the CSC. On appeal, this Court upheld the Court of Appeals in its 17 November 2004 Decision in G.R. No. 158568. 32 STCDaI On 15 June 2005, the CSC, in its Resolution No. 05081 ruled favorably on petitioner's second CSC Appeal. It declared the CHED's 7 June 2001 Memorandum Order to be not in order and directed that petitioner be reinstated to the upgraded position of Director III with backsalaries. Garcia's successor, Carlito S. Puno (Puno), moved for reconsideration but the same was denied in Resolution No. 051641 dated 8 November 2005. 33 In the latter resolution, the CSC went on to state that petitioner could no longer be reinstated to Director III in view of her compulsory retirement from office, but that she must nevertheless be awarded back salaries accruing from the time of her illegal termination until the date of her retirement on 27 June 2005. An appeal 34 from these two resolutions, docketed as CA-G.R. SP No. 92487, was brought by the CHED to the Court of Appeals. Essentially it challenged the jurisdiction of the CSC over the second CSC Appeal, claiming that petitioner was a presidential appointee and that she was not removed from office, but rather, her previous position had been validly abolished by the CHED. It likewise pointed out that petitioner violated the rule against forum shopping. SDHCac Finding merit in the appeal, the Court of Appeals on 30 May 2006 rendered the assailed decision. Petitioner's motion for reconsideration was denied; 35 hence, the present recourse to the Court. In this petition for review under Rule 45, 36 petitioner insists that the 7 June 2001 Memorandum Order was issued without legal basis, and that her summary removal from office undermined her right to due process as well as her right to security of tenure. She also contends that the Court of Appeals erred in ruling that she had engaged in forum shopping. 37 Interestingly, the CHED, represented by the Office of the Solicitor General, has opted not to justify the issuance of the subject memorandum order. Instead, it argues in its Comment 38 that the question as to whether or not the 7 June 2001 Memorandum Order was issued without legal basis is already moot and academic in view of petitioner's compulsory retirement from government service on 27 June 2005. It also maintains that petitioner committed forum shopping not only during the pendency of

the RTC petition, but also during the pendency before the Court of Appeals of the appeal from the order of dismissal issued against the same RTC petition. EHACcT The petition should be dismissed. To begin with, in the earlier Tagaro v. Garcia, 39 petitioner was declared guilty of committing forum shopping in seeking remedy, first, before the RTC of Quezon City via her petition principally questioning her non-appointment as Director III at the HEDF; and second, before the CSC through the "Administrative Appeal" she filed during and despite the pendency before the Court of Appeals of her appeal from the order dismissing the RTC petition. This Court held in Tagaro that because petitioner had presented related causes and issues before the two forums and had sought the same or substantially the same reliefs, the situation would invite the possibility of two forums issuing conflicting decisions upon the pivotal issue of whether petitioner did need the issuance of a new appointment. 40 Indeed, forum shopping exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other forum would make a favorable disposition. 41 Not only is it contumacious, it is also an act of malpractice that is proscribed and condemned because it tends to trifle with the courts and abuse existing legal processes. 42 Thus, as a measure of punishment, such act invariably merits the summary dismissal of both actions. 43 If for this basic and consequential consideration alone, the Court should dismiss the present petition as it did before in G.R. No. 158568. ACTISD Ordinarily, a dismissal on the ground of forum shopping dispenses with the need to address the other issues raised in the case. But this rule is not hard-and-fast, more so since the dismissal occasioned by breach of the anti-forum shopping rule does not permeate the merits of the case. Where such technical dismissal would otherwise lead to an inequitable result, the appropriate recourse is to resolve the issue concerned on its merit or resort to the principles of equity. After all, rules of procedure should not operate at all times in such a rigid way that would override the ends of substantial justice. Specifically, the rule on forum shopping was cobbled to foster and accelerate the orderly administration of justice and, therefore, should not be interpreted literally in every instance. 44 Here, the dismissal of the instant petition in tandem with the dismissal of the petition in G.R. No. 158568 may be interpreted as an implied affirmance, and may precipitate the execution, of the CHED's directive requiring petitioner to refund the entire compensation differential she had received during her tenure as HEDF head with the upgraded position of Director III. On the other hand, we cannot close our eyes to the fact that petitioner had served as such officer and had in fact discharged the duties of the office in good faith and in the honest belief that she needed no new appointment

in order that she may discharge her duties as HEDF head. Indeed, the peculiar factual milieu and equities of this case do debar the implementation of the CHED's order against petitioner. It is not just and proper that petitioner be made to refund the compensation differential she had derived. IDaEHC On the need to explore the merits despite the existence of forum shopping but without deciding the case on the merits, the ruling in Prubankers Association v. Prudential Bank & Trust Co. 45 is in point. There, despite the denial of the petition on a finding of forum shopping, the Court nevertheless took great lengths to at least elaborate on the merits of the case in view of the importance and novelty of the issue submitted for resolution of whether wage distortion had resulted from the implementation of the assailed wage order. Moreover, the full adjudication of the merits of an appeal is, in our jurisdiction, a matter of judicial policy, 46 and cases materially or substantially similar to the one at bar should invite the Court's attention to the merits if only to preclude the inequity that would result from the outright denial of the appeal. aSIAHC On this score, at least a structural disquisition on the merits of the petition is in order. 47 That will be done in the course of addressing this basic question: Did the CHED have legitimate authority to order the rollback of petitioner's salary to Director II and the refund of the compensation differential she had received as Director III? Let us look into the circumstances under which the office of Director II previously held by petitioner was reclassified and upgraded to Director III. Addressing CHED Chairman Alcala's request for the creation of a Director III position at the HEDF, the DBM replied in the letters dated 6 June 1997 and 11 August 1997, respectively signed by Undersecretary Irene G. Daleja and Secretary Salvador M. Enriquez, Jr. The letters clearly evinced the DBM's intent was to merely reclassify or more properly, to upgrade the existing position of Director II to Director III in view of the financial responsibility and accountability attached to the office of HEDF head. Then CHED Chairman Alcala initially sought the creation of a Director III position and the retention at the same time of the Director II position that would concurrently serve as the positions of head and assistant head, respectively, of the HEDF. The DBM, however, expressly denied Alcala's request. Instead, it suggested that the office of HEDF bearing the rank of Director II be upgraded to the status of Director III if it could also serve the purpose of giving more significance to the position of HEDF head. 48 AaIDHS DBM Undersecretary Daleja, underscoring the practical aspects and the possible effects of having two directors at the HEDF, had in fact stated in her letter that the creation of an additional director post would be inconsistent with the organizational framework of the commission and would make the HEDF as the only staff unit in the CHED that would be manned by two directors serving as head and assistant head. This, she went on, might also encourage the other staff units within the commission

to request the creation of an additional director position. 49 Reiterating the same view and considering the limited mandate of the HEDF, Secretary Enriquez, Jr. noted that the staff unit could no longer accommodate another director position, as it would mean the HEDF's elevation to the status of a bureau. Be that as it may, what appears, according to the DBM, to be a more solid justification for the denial of Alcala's request was that the creation of additional key positions in the CHED-HEDF was not only prohibited by the governing appropriation law in 1997, but it was not also authorized under existing laws or presidential directive. 50 DaTICE What becomes unmistakably clear is that the reclassification or upgrading of the position of HEDF head in this case took into consideration, not the incumbent, but rather the position itself. This is all the more evident from the fact that when Alcala's request was finally acted upon, the DBM merely elevated the status of the office of HEDF head from Director II to Director III with due regard to the significance of the said existing position. Necessarily, the favorable action carried with it the grant of the corresponding salary, benefits and allowances attached to the upgraded/reclassified position. In other words, when petitioner's position as head of the HEDF was upgraded by the DBM from Director II to Director III, no new office came into being, and no Director II office was retained, but instead the post to which petitioner was initially appointed had simply been upgraded by one salary grade through reclassification. EcDTIH As the events developed, the issue that came to the fore was whether the issuance of a new appointment in favor of petitioner was necessary for her to serve as Director III. On this question, however, the parties come from different legal predicates. In arguing for the indispensability of a new appointment, the CHED, on the one hand, relies on the opinion rendered by the Office of the President, 51 which in turn hinged on Section 4 (k), Rule III of CSC Memorandum Circular No. 40, series (s.) of 1998 52 (CSC MC No. 40, s. 1998), which requires the issuance of new appointments in favor of the incumbents to the reclassified or upgraded positions in the civil service. The CHED thus believes that because petitioner had not been issued a new appointment to the reclassified/upgraded position on account of her deliberate failure to comply with certain preconditions, the upgraded position of Director III pertaining to the HEDF head was vacated and that, hence, CHED was within its own power to roll back petitioner's status to Director II and to subsequently bar her entry into the office premises following the supposed abolition of the Director II position and the appointment of an officer-in-charge at the HEDF. caEIDA On the other hand, petitioner, who has been consistent in her stance that she needed no new appointment to the reclassified/upgraded position, advances that the controlling law is Section 28, Book V, Title I, Subtitle A, Chapter 5 of the Civil Service Law. 53 It materially states that adjustments in salaries which result from increase in pay levels or upgrading of positions not involving changes in qualification requirements shall not require new appointments. She believes that because this

provision is the general law on the matter, it thus should prevail over the memorandum circular. Section 4 (k), Rule III, of CSC MC No. 40, s.1998 defines "upgrading and reclassification" as the change in position title with the corresponding increase in salary grade. It provides as follows: Section 4. . . . (k) Upgrading/Reclassification refers to the change in position title with the corresponding increase in salary grade. Positions are upgraded in order to attain effectively the functions and duties attached to the position and for the employee to perform an all-around adaptability in meeting diverse work assignments. This requires issuance of appointment. ITHADC Upgrading/reclassification usually involves abolition and collapsing of positions which the agency finds insignificant to augment the salaries assigned to the upgraded/reclassified position. The incumbent of a position in a permanent capacity which has been upgraded/reclassified shall be appointed to the upgraded/reclassified position without change in employment status, irrespective of whether or not he meets the qualification requirements therefor. However, he shall no longer be promoted to the next higher position unless he meets the qualification requirements of the position involved. Under the first and second paragraphs of the cited provision, positions are reclassified or upgraded by abolishing or collapsing certain existing positions in the agency. It serves a dual purpose, namely, to attain efficiency and to enable the employee to be adaptable in meeting diverse work assignments. Also, the positions affected are those which the agency itself finds and deems to be insignificant which apparently contemplates the absorption of the functions of the insignificant positions by the reclassified or upgraded position. Indeed, concerning the agency's exercise of discretion and judgment as to which positions are insignificant and so must be abolished or collapsed, hardly any objection may be posed. cdasiajur Petitioner believes that the CHED has taken the first and second paragraphs found in Section 4 (k) of the memorandum circular (MC) out of context and, in the process, it seems to have overlooked the import of the last paragraph of the same provision, which essentially directs the automatic appointment of the incumbent of a position in a permanent capacity to the reclassified or upgraded position without any change in employment status, whether or not he or she meets the qualifications therefor. Petitioner capitalizes on the fact that in 1996, she was appointed in a permanent capacity as head of the HEDF with the rank of Director II; and when the position was upgraded to Director III, she continued to hold the same office in the same permanent capacity. Both the DBM and the CSC 54 acknowledged this fact. The DBM Personal Services Itemization and Plantilla of Personnel for the period before and after the

staffing modification shows that petitioner was extended a permanent appointment as head of the HEDF initially, with the position title of "Director II" 55 and, later on, "Director III" 56 following the reclassification. Hypothetically applying Section 4 (k) of MC No. 40, s. 1998, petitioner then deserved to be automatically issued an appointment to the position of Director III at the HEDF. ASIETa Section 28 of the Civil Service Law, the provision relied on by petitioner, states: Section 28. Salary Increase or Adjustment. Adjustments in salaries as a result of increase in pay levels or upgrading of positions which do not involve a change in qualification requirements shall not require new appointments, except that copies of the salary adjustment notices shall be submitted to the Commission for records purposes [Emphasis has been supplied]. This provision suggests that the necessity for the issuance of new appointments to reclassified or upgraded civil service positions depends on whether or not the measure entails changes in qualification attributes of the incumbents. In other words, where the reclassification or upgrading of positions carries with it a change in qualification requirements, then a new appointment must be issued in favor of the incumbent; otherwise, no new appointment is required. Following this precept, the reclassification of director positions in the CHED particularly the position corresponding to the HEDF head held by petitioner did not entail, much less so require, any additional or better qualifications which petitioner as incumbent must possess; in fact, no suggestion to the contrary was ever intimated in the correspondence that transpired between then CHED Chairman Alcala and the DBM which culminated in the upgrading of the status of the HEDF head position. Neither is there anything in the records from which it can be inferred that the staffing modification approved by the DBM had increased the responsibilities attached to the affected office or required a different set of qualification standards for the appointee. ITCcAD At this juncture it is not difficult to see that petitioner has impressive albeit not necessarily valid reasons to insist on her automatic appointment to the reclassified position: however, the CHED had reasonable cause to negate that claim as well as to subsequently roll petitioner's salary back to that corresponding to a Director II and bar her entry into premises of the CHED main office. Nevertheless, the Court will refrain from going into great lengths to determine which of the two sides must be sustained, inasmuch as the present petition is fatally flawed for being violative of the established rule against forum shopping. This notwithstanding, as earlier stated, it is necessary to take a holistic view of the instant case in order to render an equitable judgment. If we must necessarily reiterate, petitioner's refusal to comply with the CHED's preconditions for the issuance of a new appointment is premised on her casual reliance on Section 28 of the Civil Service Law which clearly negates any suggestion of bad faith on her part.

Indeed, no hint to that effect can be detected under the attendant facts and circumstances of the case. She, in all good faith, discharged the duties attached to the office of HEDF head with the rank of Director III and, again in good faith, received compensation therefor, at least until the controversy arose with the CHED's issuance of the memorandums assailed in this petition and that in G.R. No. 158568. ISTECA In De Jesus v. Commission on Audit 57 where the members of the board of directors of the Catbalogan Water District, petitioners therein, received additional allowances and bonuses, the payment of which turned out later on however to be without legal basis the Court, principally relying on the fact that the said petitioners accepted the benefits in good faith and under the honest belief that the same was authorized, did not order the refund of the additional compensation they had already received. So, too, in Civil Liberties Union v. Executive Secretary 58 and Blaquera v. Hon. Alcala, 59 where the Court held that officers who in good faith have discharged the duties pertaining to their office are legally entitled to the compensation attached to the office for the services they actually rendered. In fine, although the present petition must inevitably be dismissed on a technicality that serves as penalty for the pernicious practice of forum shopping, the Court nevertheless cannot countenance the refund of the compensation differential corresponding to petitioner's tenure as HEDF head with the upgraded rank of Director III, since she had actually rendered services in the office with the elevated grade for that period. 60 aATEDS WHEREFORE, the petition is DENIED subject only to the qualification that petitioner Alicia D. Tagaro is entitled to keep the salary differential she had received during her tenure as Director III at the CHED-HEDF. SO ORDERED. Quisumbing, Ynares-Santiago, Carpio, Corona, Carpio Morales, Chico-Nazario, Velasco, Jr., Nachura, Leonardo-de Castro, Brion and Peralta, JJ., concur. Puno, C.J., took no part due to relationship. Austria-Martinez, J., is on official leave. 2009jur EN BANC [G.R. No. 127545. April 23, 2008.] ANDRES SANCHEZ, LEONARDO D. REGALA, RAFAEL D. BARATA, NORMA AGBAYANI, and CESAR N. SARINO, petitioners, vs. COMMISSION ON AUDIT, respondent. DECISION TINGA, J p:

The 1987 Constitution has made the Commission on Audit (COA) the guardian of public funds, vesting it with broad powers over all accounts pertaining to government revenue and expenditures and the uses of public funds and property, including the exclusive authority to define the scope of its audit and examination, establish the techniques and methods for such review, and promulgate accounting and auditing rules and regulations. 1 Its exercise of its general audit power is among the constitutional mechanisms that give life to the check and balance system inherent in our form of government. 2 The exercise of this power by the Department Auditor of the Department of the Interior and Local Government (DILG) is the subject of the instant Petition for Review 3 dated 10 February 1997. SAHIaD A chronicle of the operative incidents is needed. In 1991, Congress passed Republic Act No. 7180 (R.A. 7180) otherwise known as the General Appropriations Act of 1992. This law provided an appropriation for the DILG under Title XIII and set aside the amount of P75,000,000.00 for the DILG's Capability Building Program. TSADaI The usage of the Capability Building Program Fund (Fund) is provided under the Special Provisions of the law as follows: Special Provisions 1. Capability Building Program for Local Personnel. The amount herein appropriated for the Capability Building Program for local personnel shall be used for local government and community capability building programs, such as training and technical assistance, with the necessary support for training materials, supplies and facilities: PROVIDED, That savings from the appropriations may be used to acquire equipment, except motor vehicles, in further support of the programs. DIETcH The Capability Building Program shall be implemented nationwide by the Department of the Interior and Local Government through the Local Government Academy and shall involve local officials and employees, including barangay officials, elected and appointed. The appropriations authorized herein shall be administered by the Department of the Interior and Local Government and shall be released upon submission of a work and financial plan supported by a detailed breakdown of the projects, activities and objects of expenditures proposed to be funded. AcISTE Savings generated over and above the requirements prescribed in Section 18 of the General Provisions of this Act shall be made available for the Capability Building Program of the Department of the Interior and Local Government for local officials and employees, subject to Section 40 of P.D. 1177 (Sec. 35, Book VI of E.O. No. 292). aSIAHC

On 11 November 1991, Atty. Hiram C. Mendoza (Atty. Mendoza), Project Director of the Ad Hoc Task Force for Inter-Agency Coordination to Implement Local Autonomy, informed then Deputy Executive Secretary Dionisio de la Serna of the proposal to constitute and implement a "shamrock" type task force to implement local autonomy institutionalized under the Local Government Code of 1991. IHEDAT The stated purpose for the creation of the task force was to design programs, strategize and prepare modules for an effective program for local autonomy. The estimated expenses for its operation was P2,388,000.00 for a period of six months beginning on 1 December 1991 up to 31 May 1992 unless the above ceiling is sooner expended and/or the project is earlier pre-terminated. cHSIDa The proposal was accepted by the Deputy Executive Secretary and attested by then DILG Secretary Cesar N. Sarino, one of the petitioners herein, who consequently issued a memorandum for the transfer and remittance to the Office of the President of the sum of P300,000.00 for the operational expenses of the task force. An additional cash advance of P300,000.00 was requested. These amounts were taken from the Fund. IDAaCc Two (2) cash advances both in the amount of P300,000.00 were withdrawn from the Fund by the DILG and transferred to the Cashier of the Office of the President. The "Particulars of Payment" column of the disbursement voucher states that the transfer of funds was made "to the Office of the President for Ad-Hoc Task Force for InterAgency Coordination to Implement Local Autonomy." 4 The first cash advance in the amount of P300,000.00 was liquidated in the following manner although no receipts were presented to support the expenditures: Payroll P226,000.00 60,000.00 7,500.00 3,682.50

Office rentals Office furnitures Office supplies Xerox 300.30

Transportation expense Bank charges Miscellaneous P298,023.80 Balance 31 March 1992 75.00 60.00

406.00

P1,976.00 5

There is no record of the liquidation of the second cash advance in the amount of P300,000.00. SDAcaT Upon post-audit conducted by Department auditor Iluminada M.V. Fabroa, however, the amounts were disallowed for the following reasons stated in the 3rd Endorsement dated 25 May 1992: 1. No legal basis for the created Task Force to claim payment thru DILG by way of cash advance. 2. Previous cash advance granted to accountable officer has not yet been liquidated. 3. Expenditures funded from capability building are subject to restrictions/conditions embodied in the Special Provisions of the DILG Appropriations of R.A. 7180 which should be met. 4. Estimate of expenses covered by the cash advance not specified. 6

The disallowance was reiterated in the Notice of Disallowance dated 29 March 1993, which states: The transfer of fund from DILG to the Office of the President to defray salaries of personnel, office supplies, office rentals, foods and meals, etc. of an Ad Hoc Task Force for Inter-Agency Coordination to Implement Local Autonomy taken from the Capability Building Program Fund is violative of the Special Provisions of R.A. 7180. 7 A Notice of Disallowance dated 29 March 1993 was then sent to Mr. Sarino, et al. holding the latter jointly and severally liable for the amount and directing them to immediately settle the disallowance. cdasia Aggrieved by such action, Mr. Sarino, et al. requested reconsideration of the disallowance on the following grounds: 1. That the transfer was for the operational expenses of an ad hoc task force for inter-agency coordination to implement local autonomy; hence, for a public purpose; 2. Legally, the question of whether or not the transfer of funds by the DILG taken from the capability building program of the Office of the President is violative of R.A. 7180 is exclusively within the competence and jurisdiction of the courts and not of any other office. As it is, the matter involves a prejudicial issue that necessitates prior authoritative determination by the courts. Unless there is a pronouncement to the contrary, the transfer of funds for a public purpose effected by the executive branch of government thru the department head is presumed legal and regular. Likewise, the DILG Auditor's conclusion of violation of the law cannot overcome the presumption of legality and regularity of acts done by public officers in the performance of public duty. At best, such conclusion is gratuitous and devoid of legal force and effect;

3. That the alleged violation is not specific and stated with particularity so as to apprise the respondents of the nature and cause of the alleged violation. Legally, therefore, the disallowance is completely void for being violative of the constitutional guarantee of due process; and 4. In the case of Binamira v. Garrucho, 188 SCRA 155, the Supreme Court held that the acts of department heads, unless reprobated or disapproved by the Chief Executive, performed and promulgated in the regular course of business are presumed valid and presumptively considered acts of the President of the Philippines. 8 Countering the foregoing points raised in the request for reconsideration, the Department Auditor denied the request, thus: 1. That the expenses was for a public purpose.

Yes, it may be granted that the expenses was for a public purpose, but it was different from the purpose for which the fund was created. Expenditures, as earlier pointed out, funded from the Capability Building Program are subject to compliance to the restrictions/conditions embodied in the Special Provisions of the General Appropriations Act of 1992. aHIEcS Section 37, P.D. 1177 provides that "All money appropriated for functions, activities, projects and programs shall be available solely for the specific purpose for which these are appropriated." (Underscoring supplied) 2. We believe that there is no prejudicial issue involved in this particular case that needs the pronouncement by the Courts. It is clearly stated in the Special Provisions of the DILG Appropriations of R.A. No. 7180 that the Capability Building Program Fund shall be used for local government and community capability building programs. Therefore the transfer and expenditures of the funds in the Office of the Deputy Executive Secretary has completely abandoned the raison d' etre for which the fund was established. CDHacE Every expenditure or obligation authorized or incurred in violation of law shall be the personal liability of the persons who authorized the expenditure. There is no need for the officer or employee to misappropriate public funds but merely appropriating public funds for a purpose other than that authorized by law. (Underscoring supplied) 3. We beg to disagree to the Counsel's claim that the alleged violation was not specific and stated with particularity so as to apprise the clients of the nature and cause of the alleged violation. ADSTCa The grounds for our disallowance were specifically enumerated in our 3rd Indorsement dated May 25, 1992, to the FMS Director, this Department. TAacIE

4. The mere transfer of the fund from DILG to the Office of the Deputy Executive Secretary to defray the salaries of the personnel, office supplies, office rentals, foods and meals, etc. is already in violation of law. Section 84 (2) of P.D. 1445 provides that "Trust funds shall not be paid out of any public treasury or depository except in fulfillment of the purpose for which the trust was created or funds received, and upon authorization of the legislative body or head of any other agency of the government having control thereof, and subject to pertinent budget law, rules and regulations. (Underscoring supplied) 9 Finding no reason to deviate from the findings of the Department Auditor, the COA affirmed the disallowance in its assailed COA Decision No. 96-654 10 dated 21 November 1996. TSEHcA It is worth noting at this juncture that while Commissioner Sofronio B. Ursal (Commissioner Ursal) signed the assailed Decision, he nonetheless submitted a dissenting opinion stating that the transfer of funds from the Fund to the Office of the Executive Secretary falls within the authority of the President to augment any item in the general appropriations law as provided in Sec. 25 (5), Art. VI of the 1987 Constitution. Thus, he concludes that the transfer is deemed an act of the President. Further, the use of the Fund by the task force to implement local autonomy falls within the purpose for which the Fund was created. However, he adds that the individual disbursements made by the task force for such expenses as salaries, allowances, rentals, food and the like should be audited by the Auditor for the Office of the President in accordance with existing accounting and auditing rules. 11 Petitioners argue that the transfer of the questioned amount from the Fund of the DILG to the Office of the President was legal and that the Notice of Disallowance dated 29 May 1993 was without basis. They explain that the Capability Building Program which was financed by the Fund was administered by the DILG and was intended as a complementary resource to aid the DILG in its task of pursuing an intensified program of enhancing local government autonomy capabilities. It was pursuant to this goal that a task force was created to design programs, strategize and prepare modules for an effective program for local autonomy with the expenses therefor to be charged against the Fund. Thus, petitioners argue that the purpose of the task force was actually within the framework of the Special Provisions of R.A. No. 7180, and the transfer of funds to effectuate this purpose was not violative of the said law contrary to the Department Auditor's conclusion. aEIcHA Further, petitioners aver that the law did not prohibit the DILG from directly coordinating with the Office of the President in attaining the objectives of local autonomy. ITSacC The Office of the Solicitor General (OSG) filed a Manifestation and Motion in Lieu of Comment 12 dated 19 January 1998, which it later disavowed, however, stating that the petition is meritorious. According to the OSG then, far from being categorically

different from the purpose for which the Fund was created, the transfer of the amount in question complemented, if not enhanced, the DILG's program to promote local autonomy. The transfer of a portion of the Fund for the operational expenses of the task force to implement local autonomy did not therefore violate the Special Provisions of R.A. No. 7180. CScTDE Because of the position initially taken by the OSG, the COA filed its own Comment 13 dated 16 March 1998, maintaining that it acted according to its constitutional mandate when it disallowed the disbursement considering that the transfer of funds from the DILG to the Office of the President was violative of the Special Provisions of R.A. No. 7180. The COA considers the Fund a trust fund which may not be paid out except in fulfillment of the purpose for which it was created and upon authorization of the head of agency and subject to budget law, rules and regulations. aSCHcA Petitioners filed their Reply 14 dated 9 March 2001. Thereafter, the parties were required to submit their respective memoranda in the Resolution 15 dated 12 February 2002. In compliance with this directive, the parties filed their memoranda 16 in reiteration of their respective positions. cDCSTA For further elucidation of the issues, the Court set the case for oral argument, crystallizing the decisive issues in this case as follows: (1) Whether there is legal basis for the transfer of funds of the Capability Building Program Fund appropriated in the 1992 General Appropriation Act from the Department of Interior and Local Government to the Office of the President; aEDCSI (2) Whether the conditions or requisites for the transfer of funds under the applicable law were present in this case; (3) Whether the Capability Building Program Fund is a trust fund, a special fund, a trust receipt or a regular appropriation; and finally (4) Whether the questioned disallowance by the Commission on Audit is valid. 17

The parties were required to simultaneously submit their memoranda in amplification of their arguments on the foregoing issues. SDTcAH Retracting its previous stance, the OSG avers in its Memorandum 18 dated 6 July 2005 that the transfer of funds from the DILG to the Office of the President has no legal basis and that COA's disallowance of the transfer is valid. According to the OSG, the creation of a task force to implement local autonomy, if one was necessary, should have been done through the Local Government Academy with the approval of its board of trustees in accordance with R.A. No. 7180. HIaAED Moreover, Sec. 25 (5), Art. VI of the Constitution authorizes the transfer of funds within the OP if made by the President for purposes of augmenting an item in the Office of the President. In this case, it was not the President but the Deputy Executive

Secretary who caused the transfers and the latter was not shown to have been authorized by the President to do so. TcSHaD The OSG's Memorandum also brings to the surface several facts which had theretofore remained hidden. For instance, it was disclosed that the disallowed transfers were released without the submission of a work and financial plan supported by a detailed breakdown of the projects, activities and objects of expenditures proposed to be funded. 19 There was also no proper liquidation of the P600,000.00 cash advance made to Atty. Mendoza who, in addition, was not even an employee either of the DILG or the Office of the President. 20 In the absence of evidence of bad faith, malice or gross negligence, however, the OSG submits that petitioners may not be held civilly and personally liable for the disallowed expenditure. IADCES The COA, in its Memorandum 21 dated 18 July 2005, reiterates its position that there is no legal basis for the transfers in question because the Fund was meant to be implemented by the Local Government Academy. Further, transfer of funds under Sec. 25 (5), Art. VI of the Constitution may be made only by the persons mentioned in the section and may not be re-delegated being already a delegated authority. Additionally, the funds transferred must come only from savings of the office in other items of its appropriation and must be used for other items in the appropriation of the same office. In this case, there were no savings from which augmentation can be taken because the releases of funds to the Office of the President were made at the beginning of the budget year 1992. EcTCAD The COA also posits that while the Fund is a regular appropriation, it partakes the nature of a trust fund because it was allocated for a specific purpose. Thus, it may be used only for the specific purpose for which it was created or the fund received. The COA concludes that petitioners should be held civilly and criminally liable for the disallowed expenditures. cHaICD For their part, petitioners maintain in their Memorandum 22 that the transfer of funds was never repudiated by the President and that operational control over the amount transferred remained with the DILG as evidenced by the fact that liquidation was done by the latter and not by the Office of the President. Petitioners also insist that the Fund is a regular item of appropriation and not a trust fund because after the end of the calendar year, any unexpended amount will be reverted to the General Fund. cTSHaE We affirm the ruling of the COA. The COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. 23 It has the power to ascertain whether public funds were utilized for the purpose for which they had been intended. aACHDS

The Court had therefore previously upheld the authority of the COA to disapprove payments which it finds excessive and disadvantageous to the Government; to determine the meaning of "public bidding" and when there is "failure" in the bidding; to disallow expenditures which it finds unnecessary according to its rules even if disallowance will mean discontinuance of foreign aid; to disallow a contract even after it has been executed and goods have been delivered. 24 Likewise, we sustained the findings of the COA disallowing the disbursements of the National Home Mortgage Finance Corporation for failure to submit certain documentary requirements and for being irregular and excessive. 25 We have also ruled that the final determination of the Department of Finance and the BIR as to a person's entitlement to an informer's reward is conclusive only upon the executive agencies concerned and not on the COA, the latter being an independent constitutional commission. 26 The COA is traditionally given free rein in the exercise of its constitutional duty to examine and audit expenditures of public funds especially those which are palpably beyond what is allowed by law. TIaCHA Verily, it is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is constitutionally-created, not only on the basis of the doctrine of separation of powers but also for their presumed expertise in the laws they are entrusted to enforce. 27 It is, in fact, an oft-repeated rule that findings of administrative agencies are accorded not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. 28 It is only when the COA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. 29 We find no grave abuse of discretion on the part of the COA in issuing the assailed Decision as will be discussed hereafter. aHICDc Petitioners have flip-flopped on whether an actual transfer of the disallowed amount had taken place. In response a pointed question during oral argument, counsel for petitioners stated that there was no transfer of even a centavo of the P600,000.00 to the Office of the President. 30 On the other hand, in their Memorandum 31 dated 28 August 2005, petitioners aver that "the transfer of funds was made by the DILG to the Office of the President, through the request of then Deputy Executive Secretary Dionisio de la Serna. The transfer of funds was never repudiated nor questioned by the President." 32 The OSG, on the other hand, unmistakably confirms the actual transfer in its Memorandum attaching the disbursement voucher and receipts covering the transfer of funds from the DILG to the Office of the President. ScHAIT

The resolution of these divergent theories is critical. If, on one hand, there was no actual transfer of funds, the propriety of the disallowance would be evaluated on the basis of whether the purpose for which the fund was used was indeed violative of R.A. No. 7180. On the other hand, if there was an actual transfer of funds, the Court would have to ascertain whether the criteria laid out in Sec. 25 (5), Art. VI of the 1987 Constitution had been met. HDATSI In the following exchange between then Justice (now Chief Justice) Puno and COA Assistant Commissioner Raquel Habitan, the latter reiterated that petitioners have always stood pat on their argument that there was a transfer of funds but that the transfer was valid as it was for a public purpose: JUSTICE PUNO: May I go to the question of transfer, am I correct in assuming that this case was resolved by your office on the theory that the transfer of funds violated the provision of the Constitution and related laws? COMMISSIONER HABITAN: Yes, Your Honor. JUSTICE PUNO: Was the question of transfer an issue raised by the petitioners when this case was under litigation up to the time when it reached your office. In other words, did the petitioners ever raise the issue that there was no transfer of any funds involved in the case? COMMISSIONER HABITAN: Your Honor, in the motion for reconsideration of then Secretary Sarino when he requested reconsideration of disallowance he relied on the following grounds that the transfer was for the operational expenses of an Ad Hoc Task Force for inter agency coordination implement local autonomy hence for a public purpose that was the number one ground for the motion for reconsideration for the disallowance, Your Honor. JUSTICE PUNO: But did they ever take the position that indeed there was no transfer of funds from the DILG to the Office of the President and then back, was that position taken by petitioner? COMMISSIONER HABITAN:

But the records will show Your Honor that there was two (2) separate vouchers one for Three Hundred Thousand each which was actually disallowed by the COA, Your Honor. JUSTICE PUNO: No, I am asking you whether the petitioners ever took that position that there was no transfer of funds at all from the DILG to the Office of the President. I ask that question because I am confused by the change of answers of the counsel for the petitioners. So, I am asking that question whether the fact of transfer was a subject of litigation up to your office. COMMISSIONER HABITAN: Yes, Your Honor, I am reading the COA decision itself and in the motion for reconsideration of Secretary Sarino. It was one of the grounds relied upon, that the transfer was for the operational expenses. He tried to justify that the operational expenses of the Ad Hoc Task Force was for a public purpose. JUSTICE PUNO: He concedes that there was a transfer, but the defense was the validity of the transfer? COMMISSIONER HABITAN: Yes, Your Honor. JUSTICE PUNO: What is the test on whether there was a transfer of funds from one agency to another agency? Let us take for example, a situation where a Task Force is created and the task of that committee is subject that properly belongs in this case with the DILG and so the task force agreed that disbursements of money should be undertaken and controlled by the head of the DILG, would the fact of control of disbursement show that there was no transfer of funds? COMMISSIONER HABITAN: But they cannot erase the fact for the record of the case that there were two (2) separate vouchers as I said. JUSTICE PUNO: Exactly, I am asking you that question would the mere fact that disbursements were under the control of the DILG, would that lead to the conclusion that there was no transfer of funds from the DILG to the Office of the President? COMMISSIONER HABITAN:

But the check, Your Honor, was in the name of the Task Force. So, evidently there was an actual transfer of the funds from DILG to the Office of the President pursuant to the Memorandum of Agreement creating the Task Force. 33 [Emphasis supplied] The theory that there was an actual transfer of funds but the same was for a public purpose has been at the core of petitioners' arguments since they requested reconsideration of the Notice of Disallowance dated 29 March 1993. Even their pleadings before the Court reveal an unwavering adherence to their theory that the transferred funds should not have been disallowed because they were used for a public purpose. CaSAcH Commissioner Ursal's dissent, which first brought to fore the opinion that the disallowed transfer was a valid exercise of the President's power to augment under Sec. 25 (5), Art. VI of the 1987 Constitution, is therefore clearly just a gratuitous argument because petitioners themselves never justified the transfer as an exercise of the President's constitutional prerogative. EHSADc At any rate, in order to finally lay this case to rest, we shall discuss whether the disallowed transfer satisfies the standard laid down for the augmentation from savings under Sec. 25 (5), Art. VI of the 1987 Constitution. TCacIE The General Provisions of R.A. No. 7180 provides that "[E]xcept by act of the Congress of the Philippines, no change or modification shall be made in the expenditure items authorized in this Act and other appropriations laws unless in cases of augmentations from savings in appropriations as authorized under Section 25 (5) of Article VI of the Constitution." 34 Sec. 25 (5), Art. VI of the 1987 Constitution, in turn, provides: Sec. 25 (5) No law shall be passed authorizing any transfer of appropriations; However, the President, the President of the Senate, The Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. AHaDSI It is important to underscore the fact that the power to transfer savings under Sec. 25 (5), Art. VI of the 1987 Constitution pertains exclusively to the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions and no other. HCTDIS In Philippine Constitution Association v. Enriquez, 35 the Court declared that individual members of Congress may only determine the necessity of the realignment of savings in the allotments for their operating expenses because they are in the best

position to know whether there are savings available in some items and whether there are deficiencies in other items of their operating expenses that need augmentation. However, it is the Senate President and the Speaker of the House of Representatives who shall approve the realignment. 36 In the same case, the Court also ruled that the Chief of Staff of the Armed Forces of the Philippines may not be given authority to transfer funds under this article because the realignment of savings to augment items in the general appropriations law for the executive branch must and can be exercised only by the President pursuant to a specific law. 37 Parenthetically, petitioners fail to point out to the Court the specific law and provision thereof which authorizes the transfer of funds in this case. ACTEHI Thus, the submission that there was a valid transfer of funds within the Executive Department should be rejected as it overlooks the fact that the power and authority to transfer in this case was exercised not by the President but only at the instance of the Deputy Executive Secretary, not the Executive Secretary himself. Even if the DILG Secretary had corroborated the initiative of the Deputy Executive Secretary, it does not even appear that the matter was authorized by the President. More fundamentally, as will be shown later, even the President himself could not have validly authorized the transfer under the Constitution. IDESTH The deliberations of the Constitutional Commission are instructive as regards the extent of the President's power to augment: MR. SARMENTO: I have one last question. Section 25, paragraph (5) authorizes the Chief Justice of the Supreme Court, the Speaker of the House of Representatives, the President, the President of the Senate to augment any item in the General Appropriations Law. Do we have a limit in terms of percentage as to how much they should augment any item in the General Appropriations Law? MR. AZCUNA: The limit is not in percentage but "from savings". So it is only to the extent of their savings. 38 The 1973 Constitution contained an identical provision: Sec. 16(5). No law shall be passed authorizing any transfer of appropriations, however, the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of constitutional commissions may by law be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. cIACaT

Construing this provision, the Court ruled in the pre-eminent case of Demetria v. Alba: 39 The prohibition to transfer an appropriation for one item to another was explicit and categorical under the 1973 Constitution. However, to afford the heads of the different branches of the government and those of the constitutional commissions considerable flexibility in the use of public funds and resources, the constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the appropriation concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body. [Emphasis supplied] Thus, we declared unconstitutional par. 1, Sec. 44 of Presidential Decree No. 1177 which authorized the President "to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment" because it unduly overextends the privilege granted under Sec. 16 (5) of the 1973 Constitution. CDAEHS We ruled that the President cannot indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard to whether the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which the transfer is to be made. 40 R.A. 7180 contains a similar provision on the President's power to augment and provides the meaning of "savings" and "augmentation", thus: Sec. 17. Use of Savings. The President of the Philippines, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions under Article IX of the Constitution, the Ombudsman and the Commission on Human Rights are hereby authorized to augment any item in this Act for their respective offices from savings in other items of their respective appropriations. CAHTIS xxx xxx xxx

Sec. 19. Meaning of Savings and Augmentation. Savings refer to portions or balances of any programmed appropriation free of any obligation or encumbrance still available after the satisfactory completion or unavoidable discontinuance or

abandonment of the work, activity or purpose for which the appropriation is authorized, or arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay. Augmentation implies the existence in this Act of an item, project, activity or purpose with an appropriation which upon implementation or subsequent evaluation of needed resources is determined to be deficient. In no case, therefore, shall a non-existent item, project, activity, purpose or object of expenditure be funded by augmentation from savings or by the use of appropriations authorized otherwise in this act. 41 Clearly, there are two essential requisites in order that a transfer of appropriation with the corresponding funds may legally be effected. First, there must be savings in the programmed appropriation of the transferring agency. Second, there must be an existing item, project or activity with an appropriation in the receiving agency to which the savings will be transferred. TcSHaD Actual savings is a sine qua non to a valid transfer of funds from one government agency to another. The word "actual" denotes that something is real or substantial, or exists presently in fact as opposed to something which is merely theoretical, possible, potential or hypothetical. 42 As a case in point, the Chief Justice himself transfers funds only when there are actual savings, e.g., from unfilled positions in the Judiciary. 43 The thesis that savings may and should be presumed from the mere transfer of funds is plainly anathema to the doctrine laid down in Demetria v. Alba as it makes the prohibition against transfer of appropriations the general rule rather than the stringent exception the constitutional framers clearly intended it to be. It makes a mockery of Demetria v. Alba as it would have the Court allow the mere expectancy of savings to be transferred. cHaCAS Contrary to another submission in this case, the President, Chief Justice, Senate President, and the heads of constitutional commissions need not first prove and declare the existence of savings before transferring funds, the Court in Philconsa v. Enriquez, supra, categorically declared that the Senate President and the Speaker of the House of Representatives, as the case may be, shall approve the realignment (of savings). However, "[B]efore giving their stamp of approval, these two officials will have to see to it that: (1) The funds to be realigned or transferred are actually savings in the items of expenditures from which the same are to be taken; and (2) The transfer or realignment is for the purpose of augmenting the items of expenditure to which said transfer or realignment is to be made." 44 As it is, the fact that the permissible transfers contemplated by Section 25 (5), Article VI of the 1987 Constitution would occur entirely within the framework of the executive, legislative, judiciary, or the constitutional commissions, already makes wanton and unmitigated malversation of public funds all too easy, without the Court

abetting it by ruling that transfer of funds ipso facto denotes the existence of savings. SAHaTc Precisely, the restriction on the transfer of funds, and similar constitutional limitations such as the specification of purpose for special appropriations bill, 45 the restriction on disbursement of discretionary funds, 46 the conditions on the release of money from the Treasury, 47 among others, "were all safeguards designed to forestall abuses in the expenditure of public funds". 48 The following exchange between Mdme. Justice Sandoval-Gutierrez and counsel for petitioners inexorably reveals that petitioners had known that there were no savings in the DILG at the time of the questioned transfers, thus: JUSTICE GUTIERREZ: All Right, according to the law augmentation implies the existence of an item, project, activity or purpose with an appropriation upon which implementation or subsequent evaluation of needed resources is determined to be deficient, my question is is there a funding in the task force to be augmented or was there insufficient funds in the task force to be augmented? ATTY. MADRIAGA: If Your Honors please, I am not privy to the appropriation for the Office of the President, but we know, Your Honor, is that these amount of Six Hundred Thousand Pesos was only to augment or to increase whatever funds perhaps would be under the Office of the President for such a gargantuan task as the implementation or preparation for the implementation of the Code, Your Honor. So, I am sorry but I do not have knowledge as to the appropriations of the Office of the President in regard to this type of activities, Your Honor. JUSTICE GUTIERREZ: In that case, Counsel, you cannot say categorically that the transfer is valid because you cannot inform the Court whether or not there was a need to augment and whether or not there was really a funding, a sufficient funding for the task force, is that right? ATTY. MADRIAGA: Yes, Your Honor. JUSTICE GUTIERREZ: Second requirement is that there must be actual savings in the item from which the same are to be taken, can you tell us now if you know for a fact that there were actual savings before the fund was transferred?

ATTY. MADRIAGA: If Your Honor please, the transfer of funds was made at the start of the calendar year 1992. The General Appropriations Act, Republic Act 7180 took effect that year. So, I would surmise, Your Honors, so as of that time there was no savings as yet that was accumulated by the department but because of the exigency of the purpose, Your Honor, considering that the Department of Interior and Local Government had only two (2) months and twenty (20) days for the preparation of the implementation of the Local Government Code which was signed, as I said, on October 10, 1991 and which was supposed to become effective on January 1, 1992, there was the urgent need, Your Honor, to prepare and there was therefore that transfer of funds, Your Honor. JUSTICE GUTIERREZ: What you are saying right now is that actually there were no savings to be transferred? ATTY. MADRIAGA: As of that time, Your Honor. [Emphasis supplied] 49 Further, the records of this case unmistakably point to the reality that there were no savings at the time of the questioned transfer. To begin with, the first disallowed voucher in the amount of P300,000.00 was paid under Check No. 160404 dated 31 January 1992. The records indicate that the second transfer occurred on 28 April 1992. 50 Presumably, the disallowed amount was remitted to and spent by the ad hoc task force within the first two quarters of fiscal year 1992. 51 There could not have been savings from the Fund on 31 January 1992 because the 1992 GAA took effect only on 1 January 1992 or 30 days before. 52 Obviously, the amount transferred from the Fund did not constitute savings as there were no such savings at the time of the transfer. It is preposterous to pronounce that savings already existed as early as 31 January 1992. It is even more ridiculous to claim that savings may be presumed from the mere transfer of funds. 53 The fact that the subsequent years' appropriations acts, i.e., the 1993 and 1994 GAA, 54 provided an appropriation for the Capability Building Program, moreover, signifies that there were no savings from the Fund from the prior year's appropriation in the 1992 GAA that could have been validly transferred. DcIHSa The appropriation for the Capability Building Program was presented in the 1992 GAA in the following manner: 55 xxx B. Locallyxxx Personal xxx Maintenance Capital Total

Funded Projects

Services

and Other

Outlays

Operating Expenses

xxx 4.

xxx Capability Building Program

xxx 75,000,000 75,000,000

It is worthy of note, therefore, that the 1992 GAA only provided an appropriation for maintenance and other operating expenses in the appropriation for the Capability Building Program, and not a single centavo for capital outlay or for personal services. SDHAcI Maintenance and other operating expenses cover traveling expense; communication services; repair and maintenance of government facilities; use, repairs and maintenance of government vehicles; transportation services; supplies and materials; rents; interests; grants, subsidies and contributions; awards and indemnities; loan repayments and sinking fund contributions; losses/depreciation/depletion; water, illumination and power service; social security benefits, rewards and other claims; auditing services; training and seminars; extraordinary and miscellaneous expenses; confidential and intelligence expenses; anti-insurgency/contingency/emergency expenses; taxes and other duties; trading/production; advertising and publication expenses; fidelity bond and insurance premiums; loss on foreign exchange; commitment fees/charges; and other services such as repairs and maintenance; printing and binding; subscription to periodicals and magazines; radiocast, telecast and documentary films; legal expenses; security and janitorial services and meal and transportation allowance. 56 Personal services, on the other hand, include the payment of salaries and wages; per diem compensation; social security insurance premium; overtime pay; and commutable allowances, 57 while capital outlays refer to appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of government, including investments in the capital of government-owned or controlled corporations and their subsidiaries as well as investments in public utilities such as public markets and slaughterhouses. 58 Maintenance and operating expenses and personal services are classified as current operating expenditures or appropriations for the purchase of goods and services for current consumption or for benefits expected to terminate within the fiscal year. 59

By the nature of maintenance and operating expenses, savings may generally be determined at the end of the year, or earlier in case of completion, discontinuance or abandonment of the work for which the appropriation was authorized. In contrast, savings from personal services may generally be determined even at the opening of the fiscal year in case of unpaid compensation pertaining to vacant positions and leaves of absence without pay. aTHASC It should be emphasized that the 1992 GAA did not provide an appropriation for personal services for the Capability Building Program. Savings from vacant positions which pertain to personal services, therefore, may not be considered savings from the Fund which may be transferred. TSADaI It is odd that during oral argument, petitioners did not bother to assert to the Court that there was actual savings from the Fund which could have been transferred, prompting Justice (later Chief Justice) Panganiban to point out that petitioners should have ascertained the existence of actual savings lest the petition be dismissed as it is based on speculation. aHCSTD JUSTICE PANGANIBAN: So you still agree with the position of Justice Gutierrez that first, the first requirement is that there must be an existing item to be augmented. Meaning, there is insufficiency of funds in that item and then there are savings in another item in another department of government which can be transferred? ATTY. MADRIAGA: Yes, Your Honor. JUSTICE PANGANIBAN: But you are not aware of any savings, actual saving, it is just projected saving? ATTY. MADRIAGA: At that time, Your Honor, I said. JUSTICE PANGANIBAN: How about now? ATTY. MADRIAGA: Your Honor? Now was there an actual saving? I think the Commission on Audit would be in a better position to answer that, Your Honor, because they are in possession of the records (interrupted)

JUSTICE PANGANIBAN: But when you filed your petition here you must have researched on this whether in fact there was savings to transfer. ATTY. MADRIAGA: As a matter of fact, Your Honor, (interrupted) JUSTICE PANGANIBAN: Otherwise, your petition would have been based on mere speculation? 60 From the foregoing, there is no question that there were no savings from the Fund at the time of the transfer. The Court cannot hold on to the disputable presumptions that official duty had been regularly performed and that the law had been obeyed. HEITAD Furthermore, the 1992 GAA itself forecloses the use of savings from the Fund for purposes other than those for which it was established as specified under the law. The Special Provisions plainly state: TEcCHD Special Provisions 2. Capability Building Program for Local Personnel. The amount herein appropriated for the Capability Building Program for local personnel shall be used for local government and community capability building programs, such as training and technical assistance, with the necessary support for training materials, supplies and facilities: PROVIDED, That savings from the appropriation may be used to acquire equipment, except motor vehicles, in further support of the programs. The Capability Building Program shall be implemented nationwide by the Department of the Interior and Local Government through the Local Government Academy and shall involve local officials and employees, including barangay officials, elected and appointed. IDEHCa The appropriations authorized herein shall be administered by the Department of the Interior and Local Government and shall be released upon submission of a work and financial plan supported by a detailed breakdown of the projects, activities and objects of expenditures proposed to be funded. cEAaIS Savings generated over and above the requirements prescribed in Section 18 of the General Provisions of this Act shall be made available for the Capability Building Program of the Department of the Interior and Local Government for local officials and employees, subject to Section 40 of P.D. 1177 (Sec. 35, Book VI of E.O. No. 292). HCTaAS

Thus, assuming that there were savings from the appropriation for the Executive Department, the Capability Building Program should have been the recipient of any transfer thereof subject only to Section 18 61 of the 1992 GAA. The Fund should have been the beneficiary and not the benefactor. Moreover, such savings should have first been used to acquire equipment in furtherance of the Capability Building Program as was the clear intent of the law. TAECaD As regards the requirement that there be an item to be augmented, which is also a sine qua non like the first requirement on the existence of savings, there was no item for augmentation in the appropriation for the Office of the President at the time of the transfers in question. Augmentation denotes that an appropriation was determined to be deficient after the implementation of the project or activity for which an appropriation was made, or after an evaluation of the needed resources. To say that the existing items in the appropriation for the Office of the President already needed augmentation as early as 31 January 1992 is putting the cart before the horse. EDISaA The task force spent the disallowed amount on behalf of the DILG allegedly to implement an item of appropriation of the DILG. This evinces the fact that there was no item in the appropriation for the Office of the President which the disallowed amount could have augmented. AEScHa The ad hoc 62 nature of the task force whose operations the illegally transferred funds were supposed to finance precisely underscores the impermanence and transitoriness of the group and its activities. Hence, the ad hoc body itself is inconsistent with the notion that there was an existing item of appropriation which needed to be augmented. CHcETA The absence of any item to be augmented starkly projects the illegality of the diversion of the funds and the profligate spending thereof. DaTHAc With the foregoing considerations, it is clear that no valid transfer of the Fund to the Office of the President could have occurred in this case as there was neither allegation nor proof that the amount transferred was savings or that the transfer was for the purpose of augmenting the item to which the transfer was made. SAHIDc Further, we find that the use of the transferred funds was not in accordance with the purposes laid down by the Special Provisions of R.A. 7180. aTCADc The Capability Building Program was established pursuant to the mandate of local autonomy under the 1987 Constitution carried out by the Local Government Code of 1991. It was supposed to guide local communities to become self-reliant and capable of self-governance. In order to finance the program, R.A. No. 7180 set up the Fund explicitly declaring that it shall be used for local government and community capability building programs, such as training and technical assistance, with the

necessary support for training materials, supplies and facilities. The Fund was to be administered by the DILG. ASTIED Construed flexibly in the context of the general objective of attaining local autonomy, the stated purpose for the creation of the task force, which was to design programs, strategize and prepare modules for an effective program for local autonomy, would have fallen within the general intendment of the Fund. It is not enough, however, for petitioners to loosely claim that the amount was used for a public purpose or that it was used to advance local autonomy. It is imperative for them to show that the questioned amount was used directly in fulfillment of the purpose for which the Fund was created. ADEHTS In this case, there is no evidence on record as to how the task force was created, what its functions were and who composed it. Atty. Mendoza, the project director of the task force, does not even appear to have been an officer or employee of or connected in any capacity to either the DILG or the Office of the President, or at least to have been acting under the authority of either office. The proposal to create the task force was initiated by Atty. Mendoza in his personal capacity and on his own authority. 63 There is also no evidence to the effect that the amount taken from the Fund was actually spent for the task force's avowed objectives or that the purpose of the task force came to fruition. There is no indication at all whether the task force was actually able to design programs, strategize and prepare modules in furtherance of local autonomy using the Fund. AcCTaD What is apparent from the records is that the amount in question was spent to "defray salaries of personnel, office supplies, office rentals, foods and meals, etc." 64 The audit conducted by the DILG Auditor covered both the invalidity of the transfer of funds and the illegality of the use thereof. The Department Auditor concluded that the questioned amount was not used for the purposes enumerated in the Special Provisions of R.A. 7180. CTIEac This evaluation was upheld by the COA itself also on both points. It said: Reviewing the grounds of this motion for reconsideration, this Commission finds no legal justification to deviate from the stand taken by the DILG Auditor. Appellants postulate that the transfer of funds was for a public purpose. However, it was categorically different from the purpose for which the fund was created. Expenditures funded from the capability building program are subject to compliance of the restrictions/conditions embodied in the special provisions of R.A. No. 7180 and Section 37 of P.D. 1177 also provides: cADaIH All money appropriated for functions, activities, projects and programs shall be available solely for the specific purpose for which these were appropriated. (Underscoring supplied)

It cannot also be validly argued that this case involves a prejudicial issue that necessitates prior determination by the courts. Thus, it is clearly stated in the special provisions of the DILG Appropriations of R.A. 7180 that the capability building program fund shall be used for local government and community capability building programs. Therefore, the transfer and expenditure of subject fund to the Office of the Executive Secretary has completely abandoned the reason or purpose for which the fund was established. It bears stressing that the mere appropriation of public funds for a purpose other than that authorized by law such as the subject transfer of funds from DILG to the Office of the Executive Secretary to defray the salaries of office personnel, supplies, rentals, foods and meals, etc. is already a violation of law. Section 84, par. 2, of P.D. 1445 provides, viz: Trust funds shall not be paid out of any public treasury or depository except in fulfillment of the purpose for which the trust was created or funds received, and upon authorization of the legislative body or head of any other agency of the government having control thereof and subject to pertinent budget law, rules and regulations. (Underscoring supplied) Appellants cannot dispute the fact that they were duly informed of the nature and cause of the alleged infraction. The constitutional guarantee of due process of law was strictly observed as the grounds for the disallowance were specifically enumerated in the 3rd Indorsement dated May 25, 1992 to the FMS Director, DILG. AaDSTH Lastly, the case of Binamira vs. Garrucho cited by the appellants refers to a petition for quo warranto filed by Mr. Ramon P. Binamira against then Secretary of Tourism Peter D. Garrucho for reinstatement to the Office of the General Manager of the Philippine Tourism Authority from which he claims to have been removed without cause in violation of his security of tenure. Appellants contend that pursuant to the aforementioned case, the transfer of funds from the DILG to the Office of the Executive Secretary was performed and promulgated in the regular course of business and is presumptively the act of the Chief Executive, unless disapproved or reprobated. This argument cannot prevail because what is disputed in the instant case is the expenditure of public funds which is subject to audit by this Commission as constitutionally mandated. Necessarily, for audit purposes, this Commission has the sole jurisdiction to determine whether or not the disbursement is in the first place legal and proper. 65 The fact that the audit was conducted by the DILG Auditor and not by the Auditor of the Office of the President is inconsequential because the findings and conclusion of the DILG Auditor were passed upon and upheld by the COA itself. cDSaEH In Olaguer v. Domingo, 66 the COA affirmed the ruling of the Resident Auditor for the National Home Mortgage Finance Corporation disallowing in audit the latter's disbursements for the purchase of a parcel of land under the Community Mortgage

Program. We sustained the COA reiterating that in this jurisdiction, findings which have been affirmed and reaffirmed along the administrative hierarchy are generally conclusive on the courts. We held: With these substantial findings, we affirm the ruling of respondent Commission on Audit. As to the other claims raised by petitioners, suffice it to state that in this jurisdiction, courts will not interfere in matters which are addressed to the sound discretion of government agencies which are entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. With all the more reason should this rule hold when, as in the instant case, the findings of respondent Razon have been affirmed and reaffirmed along the administrative hierarchy. 67 The ineluctable conclusion is that petitioners should be held personally liable for the disallowed disbursement by virtue of their position as public officials held accountable for public funds. 68 Sec. 103 of P.D. No. 1445 provides: CaEIST Sec. 103. General liability for unlawful expenditures. Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. DTAcIa Section 19 of the Manual of Certificate of Settlement and Balances states: 19.1 The liability of public officers and other persons for audit disallowances shall be determined on the basis of: (a) the nature of the disallowance; (b) the duties, responsibilities or obligations of the officers/persons concerned; (c) the extent of their participation or involvement in the disallowed transaction; and (d) the amount of losses or damages suffered by the government thereby. The following are illustrative examples: HScDIC xxx xxx xxx

19.1.3 Public officers who approve or authorize transactions involving the expenditure of government funds and uses of government properties shall be liable for all losses arising out of their negligence or failure to exercise the diligence of a good father of a family. TaDSCA xxx xxx xxx

19.2 The liability for audit charges shall be measured by the individual participation or involvement of persons in the charged transaction; i.e. public officers whose duties require the appraisal/assessment/collection of government revenues and receipts shall be liable for under-appraisal, under-assessment, and under-collection thereof." Petitioners Sarino, Sanchez, Regala, Barata and Agbayani, at the time of the disallowed transfers, were all responsible officers of the DILG being then the

Department's Secretary, Undersecretary, Chief Accountant, Director, and Chief of the Management Division, respectively. Their participation, assent and approval were indispensable to the consummation of the illegal transfer of funds and render them accountable therefor. DCcTHa In view of the foregoing, we find no grave abuse of discretion on the part of the COA in rendering the assailed Decision. The constitutional body should even be lauded for its commitment in ensuring that public funds are not spent in a manner not strictly within the intendment of the law. cCHITA WHEREFORE, the instant petition is DISMISSED and the assailed Decision of the Commission on Audit is AFFIRMED. No pronouncement as to costs. EDHCSI SO ORDERED. cCaIET

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona (I certify that J. Corona voted in favor of the Decision), Carpio-Morales, Azcuna, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro and Brion, JJ., concur. EN BANC [G.R. No. 166715. August 14, 2008.] ABAKADA GURO PARTY LIST (formerly AASJS) * OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners, vs. HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents. DECISION CORONA, J p: This petition for prohibition 1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 9335 2 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). 3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status. 4 ScAaHE The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and

allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue. 5 The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized organization. 6 AaHcIT Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual report to Congress. 7 The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and regulations of RA 9335, 8 to be approved by a Joint Congressional Oversight Committee created for such purpose. 9 Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency. aCIHAD Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a sufficient standard on that matter. While Section 7 (b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel. TCASIH

Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Court's jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the implementing agencies. DTaSIc After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed. ACTUAL CASE AND RIPENESS An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication. 10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it. 11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court. 12 IaHAcT In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even without any further overt act, 13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm. This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their allegations tends to cast a

cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. 14 HTDcCE ACCOUNTABILITY OF PUBLIC OFFICERS Section 1, Article 11 of the Constitution states: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve. caIDSH Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenuegeneration capability and collection. 15 The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public policy. Petitioners' claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative. A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To invalidate RA 9335 based on petitioners' baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it. SDHITE Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel.

In United States v. Matthews, 17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States, 18 the U.S. Supreme Court said: The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes. HaTSDA In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8 of the law: SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. DSEIcT EQUAL PROTECTION Equality guaranteed under the equal protection 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. 19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers' Union, 20 this Court declared: 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 [S]tate. 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. CDTSEI

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. 21 (emphasis supplied) aDCIHE The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary. 22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC. 23 Since the subject of the law is the revenue-generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges. The BIR performs the following functions: Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall have the following functions: SECcIH (1) Assess and collect all taxes, fees and charges and account for all revenues collected; (2) Exercise duly delegated police powers for the proper performance of its functions and duties;

(3) (4) and (5) xxx

Prevent and prosecute tax evasions and all other illegal economic activities; Exercise supervision and control over its constituent and subordinate units; Perform such other functions as may be provided by law. 24 xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions: Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions: cIETHa (1) Collect custom duties, taxes and the corresponding fees, charges and penalties; (2) (3) Account for all customs revenues collected; Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry; (5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry; (6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction; (8) (9) xxx Exercise supervision and control over its constituent units; Perform such other functions as may be provided by law. 25 xxx xxx (emphasis supplied) cAEaSC

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. SHTEaA UNDUE DELEGATION

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate. 26 It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. 27 To be sufficient, the standard must specify the limits of the delegate's authority, announce the legislative policy and identify the conditions under which it is to be implemented. 28 RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law: SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their revenue targets. DTSaHI Section 4 "canalized within banks that keep it from overflowing" 29 the delegated power to the President to fix revenue targets: SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages: Excess of CollectionPercent (%) of the of the Excess the Revenue Targets 30% or below More than 30% Excess Collection to Accrue to the Fund 15% 15% of the first

30% plus 20% of the remaining excess The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies' revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the BOC. CEDScA xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress. 30 Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC. On the other hand, Section 7 specifies the limits of the Board's authority and identifies the conditions under which officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service: HCaDET SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions: xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due process: Provided, That the following exemptions shall apply: 1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection performance that can be used as basis for evaluation; and 2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board. IAETSC (c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executory:

Provided, further, That the application of the criteria for the separation of an official or employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the AntiGraft and Corrupt Practices Act; HDIaST xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee. 31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws. 32 The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due process. At any rate, this Court has recognized the following as sufficient standards: "public interest", "justice and equity", "public convenience and welfare" and "simplicity, economy and welfare". 33 In this case, the declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public interest. STcDIE SEPARATION OF POWERS Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist. SDTIaE The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter). ATDHSC The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections 34 is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. DTEIaC The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. . . . Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. . . . Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny, investigation and supervision. a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. AaCTID xxx b. xxx xxx

Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, . . . c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. SHaATC Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. EHCDSI Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change

existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. HCacTI Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the President's veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of "subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its chambers". In an era of delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute". SAHEIc In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the alien's appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the alien's deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers. CSIDTc On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the onehouse veto was essentially legislative in purpose and effect. As such, it is subject to

the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. . . . Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised. 35 (emphasis supplied) ECTSDa In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the Commission on Elections. 36 With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere", the Constitution imposes two basic and related constraints on Congress. 37 It may not vest itself, any of its committees or its members with either executive or judicial power. 38 And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution, 39 including the procedure for enactment of laws and presentment. cECaHA Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (1) scrutiny based primarily on Congress' power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation 40 and cHDAIS

(2) investigation and monitoring 41 of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation. 42 Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers. 43 It radically changes the design or structure of the Constitution's diagram of power as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws. 44 Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence. 45 It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards. 46 In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. 47 Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making). 48 CSDcTH Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect. 49 Such rules and regulations partake of the nature of a statute 50 and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court. 51 Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution. aEIADT CONSIDERED OPINION OF MR. JUSTICE DANTE O. TINGA

Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment. 52 Section 1, Article VI of the Constitution states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (emphasis supplied) Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional committee legislative veto are invalid. EHTCAa Additionally, Section 27 (1), Article VI of the Constitution provides: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied) SCcHIE Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved by both chambers of Congress. In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress. 54 Second, it must be presented to and approved by the President. 55 As summarized by Justice Isagani Cruz 56 and Fr. Joaquin G. Bernas, S.J., 57 the following is the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the former chamber. The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the proper committee for study. The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under common authorship or as a committee bill. DTaAHS Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a bill. The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate is allowed. ATHCDa Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences between the versions approved by the two chambers, a conference committee 58 representing both Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration. The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers. . . 59 The President's role in law-making. The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication. 60 Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause, 61 the determination as to when a law takes effect is wholly the prerogative of Congress. 62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law. 63 cEaSHC

From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law. Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us. 64 SEcADa The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No. Section 13 of RA 9335 provides: SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and effect. In Tatad v. Secretary of the Department of Energy, 65 the Court laid down the following rules: 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. . . . aTADCE 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.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board. CAcDTI To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers of general circulation 66 and became effective 15 days thereafter. 67 Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee. WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Azcuna, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro and Brion, JJ., concur. Carpio, J., see separate concurring opinion. Tinga, J., please see concurring opinion. Separate Opinions CARPIO, J., concurring: I concur with the majority opinion penned by Justice Renato C. Corona. However, I wish to explain further why the last sentence in Section 12 of Republic Act No. 9335 (RA 9335), requiring the congressional oversight committee to approve the implementing rules and regulations of RA 9335, is unconstitutional. HAICcD There are three compelling grounds why the approval requirement in Section 12 is unconstitutional. First, the approval requirement violates the separation of powers among the Legislature, Executive and Judiciary. Second, the approval requirement involves the delegation to a congressional oversight committee of the power to enact laws that only the full two chambers of Congress can exercise. Third, the approval

requirement violates the constitutional provision that bills enacted into law by Congress be presented to the President for approval or veto. Section 12 of RA 9335 creates a joint congressional oversight committee (Oversight Committee) with the power to approve the implementing rules and regulations (IRR) of RA 9335. Section 12 states: Section 12. Joint Congressional Oversight Committee. There is hereby created a Joint Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist. (Emphasis supplied) HAECID Under Section 32 of RA 9335, the Department of Finance, Department of Budget and Management, National Economic and Development Authority, Bureau of Internal Revenue, Bureau of Customs, and the Civil Service Commission shall jointly draft the IRR. The IRR cannot take effect without the approval of the Oversight Committee. Implementation of the law is indisputably an Executive function. To implement the law, the Executive must necessarily adopt implementing rules to guide executive officials how to implement the law, as well as to guide the public how to comply with the law. These guidelines, known as implementing rules and regulations, can only emanate from the Executive because the Executive is vested with the power to implement the law. Implementing rules and regulations are the means and methods on how the Executive will execute the law after the Legislature has enacted the law. ATSIED The Executive cannot implement the law without adopting implementing rules and regulations. The power of the Executive to implement the law necessarily includes all power "necessary and proper" 1 to implement the law, including the power to adopt implementing rules and regulations. The grant of executive power to the President in the Constitution is a grant of all executive power. 2 The power to adopt implementing rules is thus inherent in the power to implement the law. The power to adopt implementing rules and regulations is law-execution, not law-making. 3 Within the sphere of its constitutional mandate to execute the law, the Executive possesses the power to adopt implementing rules to carry out its Executive function. This applies also to the Judiciary, which also possesses the inherent power to adopt rules to carry out its Judicial function. The Constitution mandates the President to "ensure that the laws be faithfully executed". 4 Without the power to adopt implementing rules and regulations, the Executive cannot ensure the faithful execution of the law. Obviously, the President

cannot personally execute the law but must rely on subordinate executive officials. The President is inutile without the power to prescribe rules on how subordinate executive officials should execute the law. Thus, the President must necessarily give instructions to subordinate executive officials and the public in the form of implementing rules and regulations on how the law should be executed by subordinate officials and complied with by the public. If the Legislature can withhold from the Executive this power to adopt implementing rules and regulations in the execution of the law, the Executive is made subordinate to the Legislature, not its separate, co-ordinate and co-equal branch in Government. ACHEaI The inherent power of the Executive to adopt rules and regulations to execute or implement the law is different from the delegated legislative power to prescribe rules. The inherent power of the Executive to adopt rules to execute the law does not require any legislative standards for its exercise while the delegated legislative power requires sufficient legislative standards for its exercise. 5 For example, Congress can delegate to the President the inherently legislative power to fix tariff rates. However, the President can exercise this delegated legislative power only within "specified limits" 6 prescribed by Congress. The "specified limits" and other limitations prescribed by Congress are the standards that the President must comply in exercising the delegated legislative power. Once the President complies with the legislative standards in fixing the tariff rates, he has fully exercised the delegated legislative power. This does not prevent, however, the President from adopting rules to execute or implement the delegated legislative power that he has fully exercised. These implementing rules are adopted by the President pursuant to the inherent power of the Executive to execute the law. CHEDAc There are laws that expressly provide for the Executive or its agencies to adopt implementing rules. There are also laws that are silent on this matter. It does not mean that laws expressly providing for the issuance of implementing rules automatically delegate legislative powers to the Executive. While providing for the issuance of implementing rules, the law may not actually delegate any legislative power for the issuance of such rules. It does not also mean that laws silent on the issuance of implementing rules automatically prevent the Executive from adopting implementing rules. If the law is silent, the necessary implementing rules may still be issued pursuant to the President's inherent rule-making power to execute the law. Whether the rule-making power by the Executive is a delegated legislative power or an inherent Executive power depends on the nature of the rule-making power involved. If the rule-making power is inherently a legislative power, such as the power to fix tariff rates, the rule-making power of the Executive is a delegated legislative power. In such event, the delegated power can be exercised only if sufficient standards are prescribed in the law delegating the power. IScaAE

If the rules are issued by the President in implementation or execution of selfexecutory constitutional powers vested in the President, the rule-making power of the President is not a delegated legislative power. The most important self-executory constitutional power of the President is the President's constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the President can execute the law without any delegation of power from the legislature. Otherwise, the President becomes a mere figure-head and not the sole Executive of the Government. Only if the law is incomplete, as when there are details to be filled in by the Executive under specified legislative standards before the law can be implemented, is the issuance of rules by the Executive anchored on the delegation of legislative power. Once the law is complete, that is, the Executive has issued the rules filling in the details of the law, the Executive may still issue rules to execute the complete law based now on the Executive's inherent power to execute the law. DaESIC Thus, Chapter 2, Title 1, Book III of the Administrative Code of 1987, on the Ordinance Power of the Executive, provides: Chapter 2 Ordinance Power Section 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. Section 3. Administrative Orders. Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. EaIDAT Section 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. Section 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders. Section 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars. (Emphasis supplied; italicization in the original) Section 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be

issued as general or special orders. (Emphasis supplied; italicization in the original) caDTSE These provisions of the Revised Administrative Code do not grant, but, merely recognize the President's Ordinance Power and enjoin that such power shall be promulgated according to certain nomenclatures. The President's Ordinance Power is the Executive's rule-making authority in implementing or executing constitutional or statutory powers. Indisputably, there are constitutional powers vested in the Executive that are self-executory. The President may issue "rules of a general or permanent character in implementation or execution" of such self-executory constitutional powers. The power to issue such rules is inherent in Executive power. Otherwise, the President cannot execute self-executory constitutional provisions without a grant of delegated power from the Legislature, a legal and constitutional absurdity. The President may even delegate to subordinate executive officials the President's inherent executive power to issue rules and regulations. Thus, pursuant to the President's self-executory power to implement the laws, the President has issued Executive and Administrative orders authorizing subordinate executive officials to issue implementing rules and regulations without reference to any legislative grant to do so, as follows: IHEAcC l. Administrative Order No. 175 dated 2 April 2007 on Strengthening the Powers of the Secretary of Justice over the Bureau of Immigration, Section 3 of which provides: Section 3. Implementing Rules and Regulations. The Secretary of Justice shall issue the Implementing Rules and Regulations covering this Administrative Order. 2. Executive Order No. 269 dated 12 January 2004 on Creating the Commission on Information and Communications Technology in the Office of the President, Section 8 of which provides: Section 8. Implementing Rules and Regulations. The Chairman shall promulgate and issue such rules, regulations and other issuances within 60 days from the approval of this Executive Order as may be necessary to ensure the effective implementation of the provisions of this Executive Order. IAEcCa 3. Administrative Order No. 402 dated 2 June 1998 on the Establishment of a Medical Check-Up Program for Government Personnel, Section 6 of which provides: Section 6. Implementing Rules and Regulations. The DOH, Department of Budget and Management (DBM) and the PHIC shall jointly formulate and issue the implementing rules and regulations for this program. 4. Administrative Order No. 357 dated 21 August 1997 on the Creation of the Civil Aviation Consultative Council, Section 6 of which provides:

Section 6. Implementing Rules and Regulations. The Council shall immediately formulate and adopt the necessary implementing rules and regulations for the effective and efficient implementation of the provisions of this Order. 5. Executive Order No. 396 dated 30 January 1997 Providing the Institutional Framework for the Administration of the Standards of Training, Certification and Watchkeeping for Seafarers in the Philippines, Section 4 of which provides: IaDSEA Section 4. Implementing Rules and Regulations. The STCW Executive Committee shall immediately convene to prepare and approve the Implementing Rules and Regulations for the effective implementation of this Order. 6. Administrative Order No. 296 dated 11 October 1996 on the Establishment of Customs Clearance Areas in Special Economic and/or Freeport Zones, Section 3 of which provides: Section 3. Implementing Rules and Regulations. The BOC shall issue the necessary implementing rules and regulations for the operational procedures of the CCA, in consultation with the Zone authorities and concerned agencies. 7. Executive Order No. 309 dated 11 November 1987 Reorganizing the Peace and Order Council, Section 5 of which provides: Section 5. Implementing Rules and Regulations. The National Peace and Order Council shall issue appropriate implementing rules and regulations to carry out this Order. CHcESa To hold that the President has no inherent power to issue implementing rules and regulations in the exercise of the power to execute the laws will result in the mass invalidation of the foregoing Executive and Administrative Orders, and many more with similar provisions. This will cripple the President's self-executory power to execute the laws and render the President inutile. In the present case, Section of 11 of RA 9335, the provision dealing on the issuance of the rules and regulations of RA 9335, states: Section 11. Rules and Regulations. The DOF, DBM, NEDA, BIR, BOC and CSC shall jointly issue the rules and regulations of this Act within thirty days after its effectivity. There is nothing in Section 11 of RA 9335 that delegates to the named agencies any legislative power. There are also no legislative standards prescribed its Section 11 or in other provisions of RA 9335 governing the issuance of the rules and regulations of RA 9335. Section 11 merely provides that the named agencies "shall jointly issue the rules and regulations" of RA 9335. Thus, Section 11 of RA 9335 cannot be construed as a delegation of legislative power. TASCDI

On the other hand, Section 7 (a) of RA 9335 delegates to the Revenue Performance and Evaluation Board (Board) the power to prescribe rules and regulations, as follows: Section 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions: (a) To prescribe the rules and regulations for the allocation, distribution and release of the Fund due to the agency as provided for in Section 4 and 5 of this Act: Provided, That the rewards under this Act may also take the form of non-monetary benefits; xxx xxx xxx. (Emphasis Supplied)

Section 7 (a) of RA 9335 is a delegation of legislative power to the Board in two agencies, the Bureau of Internal Revenue and the Bureau of Customs. The specified standards for the Board's exercise of the delegated legislative power are found in Sections 4 and 5 7 of RA 9335 as stated in Section 7 (a). However, the Board in Section 7 (a) of RA 9335 is different from the agencies in Section 11 of RA 9335 that will issue the rules and regulations of RA 9335. First, the members of the Board are different from the agencies named in Section 11. Second, the functions of the Board are different from the functions of the agencies named in Section 11. Third, RA 9335 does not require the rules and regulations issued by the Board to be approved by the Oversight Committee. DAaIEc Indeed, RA 9335 is an example of a law that contains a delegation of legislative power to prescribe rules based on specified legislative standards. This is exemplified by Section 7 (a). RA 9335 is also an example of a law that recognizes the inherent power of the Executive to issue implementing rules and regulations to execute the law, which becomes complete after the delegated power in Section 7 (a) is exercised by the Board. This is exemplified by Section 11. In any event, whether the rules are issued by Executive agencies pursuant to a delegated legislative power or pursuant to the Executive's inherent power to execute the law, the result is the same: the Legislature cannot approve or disapprove such rules and regulations promulgated by executive agencies. The adoption of such rules and regulations is purely an Executive function, whether pursuant to a delegated legislative power or pursuant to the Executive's inherent power. HCTaAS The delegated legislative power, often referred to as regulatory power of executive agencies, is not inherently an Executive power. However, once delegated in a law, the exercise of the delegated legislative power becomes a purely Executive function. The Legislature cannot interfere in such function except through another law. The well-entrenched rule is that Legislative officers cannot exercise Executive functions. A law that invests Executive functions on Legislative officers is

unconstitutional for violation of the separation of powers. In Springer v. Government of the Philippine Islands, 8 the U.S. Supreme Court held: Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. . . . . cSCTEH Not having the power of appointment, unless expressly granted or incidental to its powers, the Legislature cannot ingraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection, though the case might be different if the additional duties were devolved upon an appointee of the executive. Here the members of the Legislature who constitute a majority of the 'board' and 'committee', respectively, are not charged with the performance of any legislative functions or with the doing of anything which is in aid of the performance of any such functions by the Legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the Organic Act in the Governor General, it is clear that they are not legislative in character, and still more clear that they are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they do fall within that of the remaining one of the three among which the powers of government are divided. (Citations omitted) HCaDIS The power to adopt the IRR of RA 9335 is an Executive function. By requiring prior approval of the IRR by the Oversight Committee, Section 12 engrafts Executive functions on the Oversight Committee. This is a clear violation of the separation of powers. The Legislature can intervene in the execution of the law only by enacting another law amending or repealing the act of the Executive. Any intervention by the Legislature other than through legislation is an encroachment on Executive power in violation of the separation of powers. Once the Legislature enacts a bill into law and presents it to the President, its law-making function is complete. What happens to the law thereafter becomes the domain of the Executive and the Judiciary. What the Legislature can do is to investigate or oversee the implementation of the law for the purpose of enacting remedial legislation. The Legislature can also withhold budgetary appropriation necessary to implement the law. However, the Legislature cannot interpret, expand, restrict, amend or repeal the law except through a new legislation. The approval requirement in Section 12 of RA 9335 is a classic form of the so-called legislative veto. The legislative veto is a device for the Legislature to usurp Executive or Judicial power in violation of the separation of powers. An American textbook writer explains the legislative veto in this manner: SCADIT

Congress, in an attempt to maintain more control over the President and over regulations promulgated by agencies of the federal government's executive branch, has in the past incorporated into legislation a provision known as the "legislative veto" or the "congressional veto". Congress sought by statute to give itself what the Constitution gives to the President. Congress typically utilized veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions required the President or an agency official to present the proposed regulations to Congress, which retained a "right" to approve or disapprove any regulation before they take effect. 9 (Emphasis supplied) In the United States, the constitutionality of the legislative veto was resolved in the 1983 case of Immigration and Naturalization Service (INS) v. Chadha 10 where the U.S. Supreme Court declared legislative vetoes unconstitutional for violation of the Constitution's bicameralism and presentment provisions. Legislative vetoes are deemed legislative acts requiring compliance with the bicameralism and presentment provisions. Legislative acts are acts intended to affect the legal rights, obligations, relations or status of persons or entities outside the Legislature. 11 IDScTE Bicameralism requires both chambers of Congress to act in approving legislation and Congress cannot delegate this power to only one chamber, or to a committee of either or both chambers. Presentment requires Congress to present to the President for approval or veto a legislation before it becomes law. Thus, Chief Justice Warren Burger, speaking for the U.S. Supreme Court in Chadha, declared: [T]he bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. DcCIAa xxx xxx xxx

The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. . . . With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution. TDcCIS

xxx

xxx

xxx

We hold that the Congressional veto provision in 244(c)(2) is . . . unconstitutional. 12 The eminent constitutionalist Professor Laurence H. Tribe explains the Chadha ruling in this wise: In INS v. Chadha, the Supreme Court held that all actions taken by Congress that is "legislative" in "character" must be taken in accord with the "single, finely wrought and exhaustively considered procedure" set forth in the "explicit and unambiguous provisions" of Article I. In his opinion for the Court, Chief Justice Burger explained that the Presentment Clause and the bicamerality requirement constitute crucial structural restraints on the "hydraulic pressure inherent within [the legislature] to exceed the outer limits of its power". If the separation of powers is to be more than an "abstract generalization", the courts must enforce the bicamerality and presentment rules not only when Congress purports to be legislating but whenever it takes action that must be deemed "legislative". Since the legislative veto of Chadha's status as a permanent resident alien had to be so deemed but was neither approved by both Houses of Congress, nor presented to the President for signature or veto, it followed inexorably that it was unconstitutional. 13 CIAHaT The Chadha ruling "sounded the death knell for nearly 200 other statutory provisions in which Congress has reserved a legislative veto." 14 Soon after the Chadha decision, the U.S. Supreme Court, in a memorandum decision, extended the Chadha ruling to bar legislative vetoes of executive agency rules and regulations. Thus, in United States Senate v. Federal Trade Commission, 15 the Court affirmed a Court of Appeals ruling declaring unconstitutional a provision authorizing a two-chamber veto of rules and regulations issued by the Federal Trade Commission. In Process Gas Consumers Group v. Consumer Energy Council of America, 16 the separation of powers reasoning was applied for the first time to regulatory agencies. 17 The appellate court ruling affirmed by the U.S. Supreme Court in Process Gas Consumers Group declares: We hold that section 202(c) is unconstitutional. The primary basis of this holding is that the one-house veto violates Article I, Section 7, both by preventing the President from exercising his veto power and by permitting legislative action by only one house of Congress. In addition, we find that the one-house veto contravenes the separation of powers principle implicit in Articles I, II, and III because it authorizes the legislature to share powers properly exercised by the other two branches. Because we find these bases sufficient to resolve the issue, we do not reach the undue delegation of powers issue raised by petitioners. 18 (Emphasis Supplied) cCTIaS The U.S. Supreme Court has adopted the same ruling in the 1991 case of Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft

Noise. 19 In Metropolitan Washington Airports, the U.S. Supreme Court categorically applied the separation of powers in this wise: An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airports Authority (MWAA) conditioned the transfer on the creation by MWAA of a unique "Board of Review" composed of nine Members of Congress and vested with veto power over decisions made by MWAA's Board of Directors. The principal question presented is whether this unusual statutory condition violates the constitutional principle of separation of powers, as interpreted in INS v. Chadha, Bowsher v. Synar, and Springer v. Philippine Islands [citations omitted]. We conclude, as did the Court of Appeals for the District of Columbia Circuit, that the condition is unconstitutional. (Emphasis supplied) aCSDIc Interestingly, Metropolitan Washington Airports cites Springer v. Philippine Islands, 20 where the U.S. Supreme Court voided, for violation of the separation of powers, acts of the Philippine Legislature vesting in the Senate President and House Speaker, in addition to the Governor-General, the power to vote shares of stock in governmentowned corporations. The U.S. Supreme Court explained the application of the separation of powers in Metropolitan Washington Airports as follows: To forestall the danger of encroachment "beyond the legislative sphere", the Constitution imposes two basic and related constraints on the Congress. It may not "invest itself or its Members with either executive power or judicial power". And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified in Article I. The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands and Bowsher v. Synar. Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three-two legislators and one executive-to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform the executive function of controlling the management of the government-owned corporations, the Court held the statutes invalid. Our more recent decision in Bowsher involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was in effect an agent of Congress, the Court held that he could not exercise executive powers: To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. . . . The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. TcSAaH

The second constraint is illustrated by our decision in Chadha. That case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress may not delegate the power to legislate to its own agents or to its own Members. 21 (Citations omitted) Thus, the well-established jurisprudence in the United States is that legislative vetoes violate the separation of powers. As Professor Laurence H. Tribe explains: The Court has likewise recognized that congressional threats to the separation of powers are particularly worrisome in that they possess "stealth" capability: as James Madison "presciently observed, the legislature 'can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the coordinate departments.'" A recent example is the decision in Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, where the Court struck down a complicated law that conditioned transfer of control of the two airports near Washington, D.C. from the federal government to local authorities on the creation by the local authorities of a "Board of Review" comprising nine Members of Congress and vested with veto power over decisions made by the local airport agency. The Court noted that the Constitution imposes two basic restraints on Congress: (1) it "may not 'invest itself or its members with either executive or judicial power,'" and (2) "when it exercises its legislative power, it must follow the 'single, finely wrought and exhaustively considered procedure' specified in Article I." The Court explained that it did not need to decide just what sort of federal power the congressional Board of Review was exercising, because it was unconstitutional either way. "If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, 7.'' 22 (Emphasis supplied) aSTAIH Even before the Chadha ruling by the U.S. Supreme Court, almost all state supreme courts had consistently declared as unconstitutional legislative vetoes for violation of the separation of powers doctrine. As explained by one writer before the promulgation of the Chadha ruling: The courts that recently have rejected the one-house or two-house veto show remarkable consistency in their reasoning. All the decisions are based on the separation of powers. The underlying theory is that once the legislature has enacted a statute delegating authority to an administrative agency, no legislative action except

another statute may nullify or amend the enabling statute or the agency's action. CSTEHI This result rests on two premises. First, when an agency takes action pursuant to an enabling statute, the agency is engaged in the execution of the laws and is therefore carrying out an executive function. Although statutorily created administrative agencies are allowed to perform executive functions, neither the legislature nor any sub-unit of the legislature may perform such functions. Thus, any legislative intervention in the execution of the laws by means other than a statute is an encroachment on the domain of the executive branch and violates the separation of powers. The second premise is that, for purposes of this discussion, neither a onehouse nor a two-house resolution of the legislature qualifies as a statute, because neither is presented to the chief executive for approval or veto; additionally, a onehouse resolution violates the principle of bicameralism. 23 (Emphasis supplied) HCITAS Bicameralism is firmly embedded in the 1987 Constitution of the Philippines. Section 1, Article VI of the Constitution states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (Emphasis supplied) Legislative power is vested in Congress which consists of two chambers. Legislative power cannot be exercised solely by one of the two chambers. This precludes a onechamber legislative veto because one chamber alone is not the Congress. The exercise of legislative power requires the act of both chambers of Congress. Legislative power cannot also be exercised by a committee of either or both chambers for such a committee is not the Congress. Consequently, this precludes the exercise of legislative veto by a congressional committee of either or both chambers. Presentment is also firmly embedded in the 1987 Constitution of the Philippines. Section 27 (1), Article VI of the Constitution states: Section 27. (1) Every bill passed by the Congress shall, before it before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of

receipt thereof; otherwise, it shall become a law as if he had signed it. (Emphasis supplied) aITECA Every single bill passed by Congress must be presented to the President for approval or veto. No bill passed by Congress can become law without such presentment to the President. In this sense, law-making under the Constitution is a joint act of the Legislature and the Executive. A legislative veto, being a legislative act having the force of law, cannot take effect without such presentment even if both chambers of Congress approve the legislative veto. There are, of course, acts of Congress which the Constitution vests solely to Congress without the requirement of presentment to the President. For example, under Section 23 (1), Article VI of the Constitution, Congress has the "sole power" to declare the existence of a state of war. Another example is Section 8, Article IX-B of the Constitution requiring Congressional consent before an elective or appointive public officer or employee can accept any present, emolument, office or title of any kind from a foreign government. These acts, however, are exceptions to the rule on presentment. caEIDA There are also acts that the Constitution vests on a body composed of representatives of the two chambers. Under Section 18, Article VI of the Constitution, the Commission on Appointments is composed of 12 representatives from each chamber. Likewise, there are acts that the Constitution vests solely on one chamber of Congress. Under Section 21, Article VII of the Constitution, the Senate alone ratifies treaties entered into by the President. These acts, however, are exceptions to the rule on bicameralism. Finally, one additional reason advanced to justify the legislative veto in Section 12 is purportedly to insure that the IRR drafted by the executive agencies and the Civil Service Commission conform to the letter and spirit of RA 9335. In short, the Oversight Committee will decide whether the implementing rules are contrary to law. This justification is a usurpation of the power of the Judicial for only the courts can determine with finality whether the IRR violate RA 9335. DAaEIc In view of the foregoing, I vote to PARTIALLY GRANT the petition, and declare unconstitutional the last sentence of Section 12 of RA 9335 requiring the IRR to be approved by the Joint Congressional Oversight Committee. I vote to uphold the constitutionality of the other assailed provisions of RA 9335. TINGA, J., concurring: I join Justice Corona's lucid opinion one of the more legally significant decisions of this Court of recent years because it concludes for the first time that legislative vetoes are impermissible in this jurisdiction. I fully concur with the majority's reasoning for declaring legislative veto as invalid. Yet even as the ponencia aligns with most of my views, I write separately to fully explain my viewpoint. cSIHCA

I. The controversy rests on the so-called "legislative veto", defined by Tribe as "measures allowing [Congress], or one of its Houses or committees, to review and revoke the actions of federal agencies and executive departments". 1 Our Constitution specifically neither prohibits nor allows legislative vetoes, unlike presidential vetoes, which are formally authorized under Section 27, Article VI. Until today, Court has likewise declined so far to pass judgment on the constitutionality of a legislative veto. 2

The Court is unanimous that a legislative veto, such as that contained in Section 12 of Rep. Act No. 9335 is unconstitutional. Such a ruling would be of momentous consequence, not only because the issue has never been settled before, but also because many of our statutes incorporate a similarly worded provision that empowers members of Congress to approve the Implementing Rules of various particular laws. Moreover, the invalidation of legislative vetoes will send a definite signal to Congress that its current understanding of the extent of legislative powers is awry. aTEACS Concededly, our ruling will greatly affect the workings of the legislative branch of government. It would thus be intellectually honest to also consider the question from the perspective of that branch which is the branch most rejected by that ruling. Of course, the perspective of the executive should be reckoned with as well since it has traditionally inveighed against legislative vetoes. Still, if we are to consider the congressional perspective of the question, there will emerge important nuances to the question that should dissuade against any simplistic analysis of the issue. II. I have previously intimated that the President, in chartering the extent of his plenary powers, may be accorded a degree of flexibility for so long as he is not bound by any specific constitutional proscription. That same degree of deference should be extended to Congress as well. Thus, I wish to inquire into whether there is a constitutionally justifiable means to affirm legislative vetoes. The emergence of the legislative veto in the United States coincided with the decline of the non-delegation doctrine, which barred Congress from delegating its law-making powers elsewhere. 3 Modern jurisprudence has authorized the delegation of lawmaking powers to administrative agencies, and there are resulting concerns that there is no constitutional assurance that the agencies are responsive to the people's will. 4 From that framework, the legislative veto can be seen as a means of limiting agency rule-making authority by lodging final control over the implementing rules to Congress. "But instead of controlling agency policy in advance by laying out a roadmap in the statute creating the agency, Congress now proposes to control policy as it develops in notice-and-comment rulemaking, after the agency's expert staff and

interested members of the public have had an opportunity to assist in its formation." 5 It is a negative check by Congress on policies proposed by the agencies, and not a means for making policy directly. 6 TAEDcS From the perspective of Congress, the legislative veto affords maximum consideration to the plenary power of legislation, as it bolsters assurances that the legislative policy embodied in the statute will be faithfully executed upon its implementation. The faithful execution of the laws of the land is a constitutional obligation imposed on the President, 7 yet as a matter of practice, there could be a difference of opinion between the executive and legislative branches as to the meaning of the law. The clash may be especially telling if the President and Congress are politically hostile with each other, and it bears notice that the legislative veto in the United States became especially popular beginning in the early 1970s, when the ties between the Democratic-controlled Congress and the Republican President Richard Nixon were especially frayed. 8 More recently, the current U.S. President Bush has had a penchant of attaching "signing statements" to legislation he has approved, such statements indicating his own understanding of the bill he is signing into law. The legislative veto, as a practical matter, allows Congress to prevent a countervailing attempt by the executive branch to implement a law in a manner contrary to the legislative intent. DaScAI There is nothing obnoxious about the policy considerations behind the legislative veto. Since the courts, in case of conflict, will uphold legislative intent over the executive interpretation of a law, the legislative veto could ensure the same judicially-confirmed result without need of elevating the clash before the courts. The exercise of the legislative veto could also allow both branches to operate within the grayer areas of their respective constitutional functions without having to resort to the judicial resolution of their potentially competing claims. As the future U.S. Supreme Court Justice Stephen Breyer once wrote: The [legislative] veto sometimes offers a compromise of important substantive conflicts embedded deeply in the Constitution. How are we to reconcile the Constitution's grant to Congress of the power to declare war with its grant to the President of authority over the Armed Forces as their Commander in Chief? The War Powers Act approaches the problem, in part, by declaring that the President cannot maintain an armed conflict for longer than ninety days if both Houses of Congress enact a resolution of disapproval. Similar vetoes are embedded in laws authorizing the President to exercise various economic powers during times of "national emergency". To take another example, how are we to reconcile article I's grant to Congress of the power to appropriate money with article II's grant to the President of the power to supervise its expenditure? Must the President spend all that Congress appropriates? Congress has addressed this conflict, authorizing the President to defer certain expenditures subject to a legislative veto. 9 HATEDC

There are practical demerits imputed as well to the legislative veto, such as the delay in the implementation of the law that may ensue with requiring congressional approval of the implementing rules. 10 Yet the question must ultimately rest not on the convenience or wisdom of the legislative veto device, but on whether it is constitutionally permissible. In 1983, the United States Supreme Court struck a decisive blow against the legislative veto in INS v. Chadha, 11 a ruling which essentially held the practice as unconstitutional. It appears that the foremost consideration of the majority opinion in Chadha were the issues of bicameralism and presentment, as discussed by the Chief Justice in his Separate Opinion in Macalintal v. COMELEC. 12 The twin issues of presentment and bicameralism would especially come to fore with respect to the Joint Congressional Oversight Committee under Rep. Act No. 9335, composed as it is by seven Members from the Senate and seven Members from the House of Representatives. 13 Chadha emphasized that the bills passed by the U.S. Congress must be presented for approval to the President of the United States in order that they may become law. 14 Section 27 (1), Article VI of our Constitution imposes a similar presentment requirement. Chadha also noted that a bill must be concurred in by a majority of both Houses of Congress. Under our Constitution, Congress consists of a House of Representatives and a Senate, and the underlying uncontroverted implication is that both Houses must concur to the bill before it can become law. Assuming that the approval of the Implementing Rules to Rep. Act No. 9335 by seven Members from each House of Congress is a legislative act, such act fails either the presentment or bicameralism requirement. Such approval is neither presented to the President of the Philippines for consent, nor concurred in by a majority of either House of Congress. HATICc Yet with respect to the implications of Chadha on the principle of separation of powers, there are critical informed comments against that decision. Chadha involved the statutory authority of either House of Congress to disapprove the decision of the executive branch to allow a deportable alien to remain in the United States. The majority had characterized such disapproval as a legislative act, since it "had the purpose and effect of altering the legal rights, duties and relations of persons". 15 Yet that emphasis "on the labels of legislative, executive and judicial" was criticized as "provid[ing] the rhetorical ammunition for a variety of cases seeking judicial reassessment of the constitutionality not only of the great number of statutes that have incorporated some kind of legislative veto mechanism, but of regulatory statutes in general that sought to delegate legislative, executive and judicial power, and various combinations thereof, to the unelected officials that run the various federal agencies." 16 TADaCH Fisher presents a veritable laundry list of criticisms of the Chadha reasoning, replete with accusations that the analysis employed on separation of powers detracted from

the intent of the Framers, resulting in giving the "executive branch a one-sided advantage in an accommodation that was meant to be a careful balancing of executive and legislative interests". 17 He further observed: The Court's misreading of history and congressional procedures has produced some strange results. Its theory of government is too much at odds with the practices developed over a period of decades by the political branches. Neither administrators nor congressmen want the static model proffered by the Court. The conditions that spawned the legislative veto a half century ago have not disappeared. Executive officials still want substantial latitude in administering delegated authority; legislators still insist on maintaining control without having to pass another law. The executive and legislative branches will, therefore develop substitutes to serve as the functional equivalent of the legislative veto. Forms will change but not power relationships and the need for quid pro quo. 18 TaEIcS And Tribe himself finds flaw in the Chadha analysis of what constituted a legislative act: And why, precisely, did the veto of the suspension of Chadha's deportation have to be deemed legislative? It was "essentially legislative", according to the Court, because it "had the purpose and effect of altering the legal rights, duties and relations of persons . . . outside the legislative branch". Without Congress' exercise of the legislative veto in his case, Chadha would have remained in America; without the veto provision in the immigration statute, the change in Chadha's legal status could have been wrought only be legislation requiring his deportation. The difficulty with this analysis is that the same observations apply with equal validity to nearly all exercises of delegated authority, whether by a House of Congress or by an executive department or an administrative agency. Both through rule-making and through caseby-case adjudication, exercises of delegated authority change legal rights and privileges no less than do full-fledged laws. There was perhaps less need than the Court perceived to squeeze the legislative veto into one of the three pigeonholes envisioned by the Framers. Even if Congress' action had been deemed "executive" in nature, it presumably would have been unconstitutional, since Congress may make, but not execute the laws. And if the legislative veto had been deemed "judicial", it would still have violated the separation of powers, as Justice Powell recognized in his concurring opinion. 19 AIcECS The majority in Chadha did not address the reality that the U.S. Congress had relied on the legislative veto device for over five decades, 20 or for that matter, the valid concerns over the executive usurpation of legislative prerogatives that led to the invention of the veto as a countervailing measure. Justice Byron White relied extensively on these concerns in his dissenting opinion in Chadha. Nonetheless, the invalidation of the legislative veto in Chadha has caused serious discussion as to alternative constitutional means through which Congress could still

ensure that its legislative intentions would not be countermanded by the executive branch. On one extreme, a Republican congressman, Nick Smith of Michigan, filed a bill requiring that significant new regulations adopted by administrative agencies be approved by a joint resolution of Congress before they would become effective. 21 Less constitutionally controversial perhaps were the suggestions of Justice Breyer in remarks he made after Chadha was decided. He explained that "Congress unquestionably retains a host of traditional weapons in its legislative and political arsenal that can accomplish some of the veto's objectives." 22 These include the power to provide that legislation delegating authority to the executive expires every so often. To continue to exercise that authority, the executive would have to seek congressional approval, at which point past agency behavior that Congress disliked would become the subject of serious debate. Moreover, Congress might tailor its statutes more specifically, limiting executive power. Further, Congress can require the President, before taking action, to consult with congressional representatives whose views would carry significant political weight. Additionally Congress can delay implementation of an executive action (as it does when the Supreme Court promulgates rules of civil procedure) until Congress has had time to consider it an to enact legislation preventing the action from taking effect. Finally, each year Congress considers the agency's budget. If a significant group of legislators strongly opposes a particular agency decision, it might well succeed in including a sentence in the appropriations bill denying the agency funds to enforce that decision. 23 DaCTcA I raise these points because even with the invalidation of the legislative veto, Congress need not simply yield to the executive branch. The invalidation of the legislative veto can be mistakenly perceived as signal by the executive branch that it can, in the guise of rule-making power, adopt measures not authorized or even forbidden in the enabling legislation. If that happens, undue weight will be shifted to the executive branch, much like what had happened when former President Marcos exercised both executive and legislative powers. One might correctly argue that the judicial branch may still exercise corrective relief against such unauthorized exercise by the executive, 24 yet the relief may not come for years to come, considering the inherently deliberative judicial process. I do believe that there is a constitutionally sound mechanism through which Congress may validly influence the approval of a law's Implementing Rules. Section 12 of Rep. Act No. 9335 may not be such a means, but I maintain that it would be highly useful for the Court to explain how this can be accomplished. In this light, I submit the following proposed framework for invalidating the legislative veto while recognizing the pre-eminent congressional prerogative in defining the manner how legislation is to be implemented. ISCTcH III.

We can consider that in the enactment and implementation of a law, there is a legislative phase and an executive phase. The legislative phase encompasses the period from the initiation of a bill in Congress until it becomes effective as a law. On the other hand, the executive phase begins the moment the law is effective and falls within the capacity of the executive branch to enforce. Notably, as such, it is only upon the effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Now, subject to the indispensable requisite of publication under the due process clause, 25 the determination as to when a law takes effect is wholly the prerogative of Congress. 26 As such, it is only upon effectivity that the law may be executed, and the executive branch acquires the duties and powers to execute that law. Before that point, the role of the executive branch, particularly the President, is limited to signing or vetoing the law. All other powers of government that attach to the proposed law are exercised exclusively by Congress and are hence, legislative in character. In fact, the United States Supreme Court, speaking through Justice Black, has gone as far as to hold that the Constitution "limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." 27 ASEIDH It is viable to hold that any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law after the execution phase has begun violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the Implementing Rules after the law has already taken effect is unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by those members of the executive branch charged with the implementation of the law. This time or phase demarcation not only affords a convenient yardstick by which to assess the constitutionality of a legislated role for Congress vis--vis a law, it also hews to the proper allocation of governmental powers. Again, the exercise of executive powers relative to a statute can only emanate after the effectivity of the law, since before that point, said law cannot be executed or enforced. Until a law becomes effective, there are no executive functions attached to the law. DaAETS Of course, following this rationale, Section 12 of Rep. Act No. 9335 will have to be invalidated. To cite one outstanding example of what else would be invalidated as a result is the Joint Congressional Power Commission established in the EPIRA (Rep. Act No. 9136), where the Commission composed of several members of Congress exercises a continuing role in overseeing the implementation of the EPIRA. 28 The functions of the Joint Congressional Power Commission are exercised in the execution phase, and thus beyond the pale of legislative power. There are many other provisions in our laws, such as those similar to Section 12 of Rep. Act No. 9335, that will similarly not pass muster after this ruling, and the Court will have to reckon with

the real problem as to whether this decision effectively nullifies those provisions as well. Nonetheless, the Court need not invalidate those provisions in other laws yet and await the appropriate cases to do so, similar to the approach previously taken on the invalidation of municipalities created by the President in Pelaez v. Auditor General. 29 DIESHT IV. I seriously disagree with Justice Carpio's assertion that the power to formulate or adopt implementing rules inheres in the executive function. That power is a legislative function traditionally delegated by Congress to the executive branch. The ponencia satisfactorily asserts this point through its Footnote No. 63, and I need not belabor it. One option for congressional control over executive action is to be very specific and limiting in the delegation of power to agencies, so that their rulemaking power will in turn be limited. 30 The power to make rules and regulation is that kind of legislative power which may be delegated. 31 In practice, the United States Congress has engaged frequently in broad delegations that in effect require agencies to make specific sub-rules i.e., to exercise legislative power. 32 This practice has drawn some criticism that power is now concentrated in the executive branch and that it is thus necessary to restore Congress to its original status of preeminence. 33 The growth of an enormous national bureaucracy, operating for the most part within the executive branch, may have fundamentally altered the original constitutional framework and requires some sort of response if the original constitutional concerns are to be satisfied. 34 EAcTDH Section 12 of Rep. Act No. 9335, or any other provision of law granting components of the executive branch the power to formulate implementing rules, is a delegation of legislative power belonging to Congress to the executive branch. Congress itself has the power to formulate those particular rules and incorporate them in the law itself. What I believe Congress is precluded from doing is to exercise such power after the law has taken effect, in other words, after the execution phase has begun. Unless such a limitation were laid down, there would ensue undue encroachment by Congress in the exercise of legislative power. This delegable rule-making power may be classified into two types: (1) rules intended to regulate the internal management of the agencies themselves; and (2) rules supplementing a statute and intended to affect persons and entities outside the government made subject to agency regulation. 35 Either case, the power of the executive branch to promulgate such rules springs from legislative delegation. In the Philippines, the power of executive officials to enact rules to regulate the internal management of executive departments was specifically allocated to them by a statute, the Administrative Code of 1987, promulgated by President Aquino in the exercise of her then extant legislative powers. With respect to supplementary rules to

particular legislation, the power of executive officials to formulate such rules derives from the legislation itself. But in no case does such power emanate actually from inherent executive power. ITHADC The rule need not be hard and fast. We may as well pay heed to Blackstone's practical observation that the "manner, time and circumstances of putting laws in execution must frequently be left to the discretion of the executive magistrates". 36 But by and large, any problem left by the absence of clear and explicit statutory language is avoided in turn by the statutory delegation of legislative power to executive officials to vest them sufficient discretion to fill in the details. 37 We thus cannot detract from the fundamental principle that rule-making power is legislative in character and exercised by executive officials only upon a statutory delegation of legislative power. As Fisher summarizes the peculiar dynamic: Presidents are obligated under the Constitution to take care that the laws be "faithfully executed". The often conflicting and ambiguous passages within a law must be interpreted by executive officials to construct the purpose and intent of Congress. As important as intent is the extent to which a law is carried out. President Taft once remarked, "Let anyone make the laws of the country, if I can construe them." DAHaTc To carry out the laws, administrators issue rules and regulations of their own. The courts long ago appreciated this need. Rules and regulations "must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority. Current law authorizes the head of an executive department or military department to prescribe regulations "for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. These duties, primarily of a "housekeeping" nature, relate only distantly to the citizenry. Many regulations, however, bear directly on the public. It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policymaking that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws. Agency rulemaking must rest on authority granted directly or indirectly by Congress. 38 IDaEHS The Court's rightful rejection of Justice Carpio's premise that the power of the President of promulgate Implementing Rules and Regulations is inherently executive provides a necessary clarification that is critical to the understanding of the Court's ruling today. Had Justice Carpio's position been adopted by the Court, the result would have been a presidency much stronger than the Constitution envisioned. Acceding to the President the power to craft Implementing Rules to legislation even if Congress specifically withholds such power to the Chief Executive would have upset

the finely measured schematic of balanced powers, to the benefit of the President. Fortunately, with the disavowal of that theory, greater consideration is accorded to legislative prerogatives without compromising the important functions of the presidency. V. Thusly, there is nothing inherently unconstitutional in congressional participation in the formulation of implementing rules of legislation since that power is legislative in character. Yet there still are multiple roadblocks impeding a constitutionally valid exercise of that prerogative by Congress. The matters of bicameralism and presentment, as expounded in Chadha, are hurdles which I submit should bind the Philippine Congress as it exercises its legislative functions. Section 12 of Rep. Act No. 9335 can be struck down on that ground alone. 39 Moreover, imposing a rule barring a legislative role in the implementation of a law after the statute's effectivity will sufficiently preserve the integrity of our system of separation of powers. aAcDSC At the same time, the concerns of Congress that may have animated the rise of the legislative veto should not be disrespected by simply raising formalistic barriers against them. In practice, the legislative veto is an effective check against abuses by the executive branch. The end may not justify unconstitutional means, yet we should leave ample room for Congress to be able to address such concerns within broad constitutional parameters. There are a myriad of creative ways by which Congress may influence the formulation of Implementing Rules without offending the Constitution. If there are especially problematic areas in the law itself which Congress is not minded to leave any room for interpretative discretion by executive officials, then the provision involved can be crafted with such specificity to preclude alternative interpretations. At the same time, commonly, legislators and their staffs may lack the expertise to draft specific language. 40 Speaking from my own legislative experience, it is in the drafting of the Implementing Rules, rather than in the statute itself, that the particular expertise of the agency officials and experts tasked with the implementation of the law become especially vital. TaISEH Also, Congress can dictate which particular executive officials will draft the implementing rules, prescribe legal or factual standards that must be taken into account by such drafters, or otherwise impose requirements or limitations which such drafters are bound to comply with. Again, because the power to draft implementing rules is delegated legislative power, its exercise must be within the confines of the authority charted by Congress. And because executive functions cannot commence until after the effectivity of the law, Congress may very well adopt creative but constitutional measures that suspend the effectivity of the law until implementing rules to its liking are crafted. There is nothing unconstitutional with suspending the effectivity of laws pending the

occurrence of a stipulated condition. "[I]t is not always essential that a legislative act should be a completed statute which must in any event take effect as a law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event." 41 SaTAED The requirements of bicameralism and especially presentment may pose insurmountable hurdles to a provision that plainly suspends the effectivity of a law pending approval by Congress or some of its members of the implementing rules. 42 At the same time, it should be recognized that Congress does have the prerogative to participate in the drafting of the rules, and if it finds a means to do so before the execution phase has begun, without offending bicameralism or presentment, such means may be upheld.