Constitutional Law Reviewer by Prof. Gacayan 2010

OUTLINE OF NOTES & CASES IN POLITICAL LAW June 2010 Edition

Prepared by: ATTY. LARRY D. GACAYAN Professor (Constitutional Law Review, Constitutional Law I & II) COLLEGE OF LAW UNIVERSITY OF THE CORDILLERAS PRE-BAR REVIEWER

CPRS PRE-BAR REVIEW CENTER (Cagayan de Oro City, Zamboanga City, Iloilo City and Davao City)

EXCELLENT PRE-BAR REVIEW CENTER (General Santos City, Baguio City, Cebu City, Naga City and Tacloban City)

POWERHAUS PRE-BAR REVIEW CENTER (Manila, Santiago City and Tagbilaran City) COSMOPOLITAN BAR REVIEW CENTER (Baguio City)

PART I

2 DEFINITIONS AND CONCEPTS

1. Define: a. Political Law—is that branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (PEOPLE VS. PERFECTO, 43 Phil. 887) b. c. d. e. f. g. h.

Constitutional Law Constitution Administrative Law Law of Public Officers Law on Public Corporations Election Law Distinction between Political Law and Constitutional Law

2. Read: MACARIOLA VS. JUDGE ASUNCION, 114 SCRA 77 The provision in the Code of Commerce (Made effective in the Philippines in 1887) which prohibits judges, justices, etc., (public officers) from engaging in business within the territorial jurisdiction of their courts is political in nature and therefore, said provision was deemed abrogated when there was a change of sovereignty from Spain to the United States at the turn of the century. Political laws are deemed abrogated if there is a change of sovereignty and unless re-enacted under the new sovereign, the same is without force and effect. 3. The Supremacy of the Constitution Read: 1. MUTUC VS. COMELEC, 36 SCRA 228 2. MANILA PRINCE HOTEL VS. GSIS, 267 SCRA 408 A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. 2

3 Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision, which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. 4. Kinds of Constitution a) written or unwritten b) rigid and flexible c) cumulative or conventional 5. AMENDMENT OR REVISION OF THE CONSTITUTION (Art. XVII) Section 1. Any amendment to, or revision of, this Constitution may be proposed by: [1] The Congress upon a vote of ¾ of all its Members; or [2] A constitutional Convention. Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voter therein. No amendment under this Section shall be authorized within five (5) years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for implementation of the exercise of this right.

the

Section 3. The Congress, by a vote of 2/3 of all its members, cal a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 3

4 sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than ninety days after the certification by the COMELEC of the sufficiency of the petition. (2007 Bar Question in Political Law: Question: May Congress by ¾ votes of all its members (whether voting jointly or separately) AMEND any provision of the Constitution? Answer: No. It can only propose amendments by ¾ votes of all its members. A provision is amended only after it was ratified by majority of the votes cast during the plebiscite called to amend or reject the proposed amendments) NOTE: Amendments to, or revision of the Constitution is VALID only when approved by a majority of the votes cast during the plebiscite, not by the votes of the Members of Congress. 2. Read: R.A. 6735 Requisites for a valid people’s initiative to amend the Constitution; distinctions between amendment and revision. RAUL L. LAMBINO and ERICO B. AUMENTADO , together with 6,327,952 registered voters vs. THE COMMISSION ON ELECTIONS, G.R. No. 174153, October 25, 2006, 505 SCRA 160 Carpio, J. Facts: Petitioners filed a Petition for Initiative and Referendum with the COMELEC to amend the 1987 Philippine Constitution, particularly Articles VI and VII to replace the present Presidential-Bicameral system of government to Parliamentary-Unicameral system using Section 2, Art. XVII of the Constitution. Petitioners claim that their petition was signed by 6,327,952 million voters all over the country and the same constitutes over 12% of all the registered voters in the entire country and that more than 3% of the registered voters in every legislative district signed the same in accordance with Section 2, Art. XVII of the Constitution. The petition to change the Constitution involves sections 1-7 of Article VI; Sections 1-4 of Article VII and an Article XVII entitled “Transitory Provisions”. The petitioners prayed with the COMELEC that after due publication of their Petition, the COMELEC should submit the following proposition in a plebiscite for the voters’ ratification: DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESIDENTIAL BICAMERAL TO A UNICAMERALPARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? The COMELEC dismissed the petition citing MIRIAM DEFENSOR SANTIAGO VS. COMELEC, 270 SCRA 106 where it was held that: 4

5

RA 6735 intended to include the System of Initiative on Amendments to the Constitution, but is, unfortunately, Inadequate to cover that system under Section 2, Art. XVII of the Constitution. x x x . The foregoing brings us to the conclusion that RA 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act. Considering the said dismissal, petitioners elevated the matter to the Supreme Court on Certiorari and Mandamus alleging rave abuse of discretion and to set aside the COMELEC’ Decision and to compel the latter to give due course to their initiative petition. THE ISSUES: 1. WHETHER THE LAMBINO GROUP’S PETITION COMPLIES WITH SECTION 2, ARTICLE XVII OF THE CONSTITUTION ON AMENDMENTS TO THE CONSTITUTION THROUGH PEOPLE’S INITIATIVE; 2. WHETHER THE COURT SHOULD REVISIT ITS RULING IN DEFENSOR-SANTIAGO VS. COMELEC, DECLARING THAT RA NO. 6735 “INCOMPLETE, INADEQUATE OR WANTING IN ESSENTIAL TERMS AND CONDITIONS” TO IMPLEMENT THE INITIATIVE CLAUSE ON PROPOSALS TO AMEND THE CONSTITUTION; and 3. WHETHER THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING DUE COURSE TO THE LAMBINO GROUP’S PETITION. H E L D: There is no merit to the petition. The Lambino group miserably failed to comply with the basic requirements of the Constitution for conducting a people’s initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group’s glaring failure to comply with the basic requirements of the Constitution. As such, there is likewise no grave abuse of discretion on the part of the COMELEC. Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people’s initiative to propose amendments to the Constitution. This Section provides: “Section 2. Amendments to this Constitution may likewise be DIRECTLY PROPOSED BY THE PEOPLE through initiative upon a petition of at least twelve per centum (12%) of the total number of registered voters of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein.” The deliberations of the Constitutional Convention vividly explain the meaning of the amendment “directly proposed by the people through initiative upon a petition”. Thus: 5

6

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. IS THE DRAFT OF THE PROPOSED CONSTITUTIONAL AMENDMENT READY TO BE SHOWN TO THE PEOPLE WHEN THEY ARE ASKED TO SIGN? MR. SUAREZ. That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign? Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President…As it is envisioned, any Filipino can prepare that proposal and pass it around for signature. Clearly, the framers of the Constitution intended that the “draft of the proposed constitutional amendment” should be “ready and shown” to the people “before they sign such proposal”. The framers plainly stated that “before they sign there is already a draft shown to them.” The framers also “envisioned” that the people should sign on the proposal itself because the proponents must “prepare the proposal and pass it around for signature.” The essence of amendments “directly proposed by the people through initiative upon a petition” IS THAT THE ENTIRE PROPOSAL ON ITS FACE IS A PETITION BY THE PEOPLE. This means two (2) essential elements must be present: 1. The people must author and must sign the entire proposal. No agent or representative can sign for and on their behalf; 2. As an initiative upon a petition, THE PROPOSAL MUST BE EMBODIED IN A PETITION. These essential elements are present only if the full text of the proposed amendments is first shown to the people who will express their assent by signing such complete proposal in a petition. Thus, an amendment is “DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON “ ONLY IF THE PEOPLE SIGN ON A PETITION THAT CONTAINS THE FULL TEXT OF THE PROPOSED AMENDMENTS. The petitioners bear the burden of proving that they complied with the constitutional requirements in gathering the signatures---that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition a copy of the document containing the proposed amendments and as such, the people signed initiative petition without knowing the actual amendments proposed in the said initiative. Instead , the alleged 6.3 million people who signed the petition had to rely the representations of Atty. Lambino. Clearly, Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation. 2. A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress and a Constitutional Convention can propose both amendments and revisions to the Constitution. This is clear under Section 1 of Art. XVII of the Constitution. Where the intent and language of the Constitution under Section 2 of Art. XVIII clearly withhold from the people the power to propose revisions to the 6

7 Constitution, the people cannot propose revisions even as they are empowered to propose amendments. The two are distinguished as follows: “Revision” is the alterations of the different portions of the entire document [Constitution]. It may result in the rewriting whether the whole constitution, or the greater portion of it, or perhaps some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the Constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. “Amendment” of the Constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. (NOTE: On November 20, 2006, the Supreme Court in its Resolution of the Motion for Reconsideration of Lambino, while it denied the Motion for Reconsideration for lack of merit insofar as they want the people’s initiative petition to be presented to the people in a plebiscite, it held that ten (10) members voted to declare that RA No. 6735 IS COMPLETE AND ADEQUATE and therefore, people’s initiative may be availed of by the people provided they shall comply with the strict requirements of Section 2, Art. XVII that the proposed amendments/s to the Constitution must be indicated in the petition itself signed by the people.) MIRIAM DEFENSOR-SANTIAGO, et al. Vs. COMELEC, G.R. No. 127325, March 19, 1997 & June 10, 1997 RA 6735 intended to include the System of Initiative on Amendments to the Constitution, but is, unfortunately, Inadequate to cover that system. Section 2 Art. XVII is not self-executory and unless Congress provides for its implementation , it would remain in the cold niche of the Constitution. RA 6735 in all its 23 sections mentions the word “Constitution” only in section 2 and Section 3 as compared to the initiative on “statutes” and local legislation. The foregoing brings us to the conclusion that RA 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act. Enumerate the steps to be followed and the requisites to be met in order that the people may proposed the amendments, repeal, amend or enact a law or provision of the Constitution. 3. Distinguish “Revision” from “amendment” of the Constitution. “Revision” is the alterations of the different portions of the entire document [Constitution]. It may result in the rewriting 7

8 whether the whole constitution, or the greater portion of it, or perhaps some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the Constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. “Amendment” of the Constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. (SINCO, Vicente, PHILIPPINE POLITICAL LAW) 4. Read: a) MABANAG vs. LOPEZ VITO, 78 Phil. 1 b) GONZALES vs. COMELEC, 21 SCRA 774 There is no prohibition for Congress to propose amendments to the Constitution and at the same time call for the convening of a Constitutional Convention to amend the Constitution. The word “or” in the provision “… Congress, upon a vote of ¾ of all its members; OR [2] A constitutional Convention” under Section 1, Art. XVII also means “AND”. c) TOLENTINO vs. COMELEC, 41 SCRA 702 “Doctrine of Proper Submission” means all the proposed amendments to the Constitution shall be presented to the people for the ratification or rejection at the same time, not piecemeal. d) SANIDAD vs. COMELEC, 73 SCRA 333 e) ALMARIO vs. ALBA, 127 SCRA 69 If the question regarding the proposed amendment to the Constitution deals with its “necessity, expediency or wisdom”, the same is political in nature and beyond the power of the courts to decide. f) MIRIAM DEFENSOR SANTIAGO VS. COMELEC, 270 ACRA 106 2009 BAR: QUESTION No.XVIII. What are the essential elements of a valid petition for a people’s initiative to amend the 1987 constitutions? SUGGESTED ANSWER: The essential elements of a valid petition for a people’s initiative are: 1. The people must author and sign the entire proposal; no agent or representative can sign in their behalf; 2. The proposal must be embodied in the petition; and 3. The number of people who petitioned must be at least 12% of the total number registered voter, of which every legislative district must be represented by at least 3% of the registered voter therein. 4. Any amendment through people’s initiative shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the Commission on Election of the sufficiency of the petition.

8

9

PART II PREAMBLE 1. Purpose and Effect of a Preamble. WE, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. 2. AGLIPAY VS. RUIZ, 64 Phil. 201 It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. PART III ARTICLE I - THE NATIONAL TERRITORY Section 1. The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the 9

10 subsoil, the insular shelves, and other submarine areas. The waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. 1. What is the most significant change in this Article, compared with those of the 1935 and 1973 Constitutions? 2. What is the archipelago theory or archipelagic doctrine? 3. Methods used in fixing the baseline from which the territorial belt is measured: a. The normal baseline method b. The straight baseline method 4. Read: The Law of the Sea: Its major implications to the Philippines, by Justice Jorge R. Coquia, p. 31, Philippine Law Gazette, Vol. 8, No.1. 5. R.A. 3046 R.A. 5446 6. Definitions: a. Territorial sea b. Internal or inland waters c. high seas or international seas d. sea-bed e. sub-soil f. Insular shelves g. other submarine areas 7. Reason and effect of having an Article on the National Territory. 8. Read: 1) Presidential Decree No. 1596 - June 11, 1978 (Making the Kalayaan Island Group [Freedomland] as part of the Philippine Territory) 2) Presidential Decree No. 1599 - June 11, 1978 (Declaring the Exclusive Economic Zone of the Philippines which is 200 nautical miles from its baseline) PART IV ARTICLE II. DECLARATION OF PRINCIPLES AND STATE POLICIES

Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. a. The basic principles underlying the 1935, 1973 and 1987 Constitutions. b.Manifestations of a republican state. c. Define "state" COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23 10

11 d. Elements of a state. Define each: 1. people 2. territory 3. sovereignty 4. government e. Different meanings of the word “people” as used

in the constitution:

1. as inhabitants (Art. XIII, Sec. 1; Art. III, Sec. 2); 2. as citizens (Preamble; Art. II, Sec. 1 & 4; Art. III, Sec. 7); 3. as voters (Art. VII, Sec. 4) f. presidential & parliamentary forms of government Read: 1. FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757 The government of the Philippines under the 1973 Constitution is “essentially presidential with parliamentary features.” 2. LEGASPI VS. SEC. OF FINANCE, 115 SCRA 418 The form of government is “essentially parliamentary with presidential features.” g. Two-fold function of the government. Read: 1)BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and Constituent [Mandatory] Functions) 2) ACCFA VS. CUGCO, 30 SCRA 649 Due to complexities of the changing society, the two-fold function of the government as classified by President Wilson is no longer relevant. h. Parents Patriae Read: 1) GOVT. VS. MONTE DE PIEDAD, 35 Phil 738 2) CABANAS VS. PILAPIL, 58 SCRA 94 i. De jure govt.? De facto govt.? Read: 1. AQUINO VS. COMELEC, 62 SCRA 275 (on the de jure aspect) 2. In Re: SATURNINO BERMUDEZ, 145 SCRA 160 A government formed as a result of a people’s revolution, is considered de jure if it is already accepted by the family of nations or other countries like the United States, Great Britain, Germany, Japan, and others. 3. Estrada vs. Macapagal & Desierto, infra. j. The three (3) kinds of de facto government? 11

12

Read: CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113 There are several kinds of de facto governments. a. The first, or government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. b. The second is that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States. c. And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third kinds of de facto governments. "But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government. On the other hand, laws of a political nature or affecting political relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the press, and the right to travel freely in the territory occupied, are considered as suspended or in abeyance during the military occupation. Although the local and civil administration of justice is suspended as a matter of course as soon as a country is militarily occupied, it is not usual for the invader to take the whole administration into his own hands. In practice, the local ordinary tribunals are authorized to continue administering justice; and judges and other judicial officers are kept in their posts if they accept the authority of the belligerent occupant or are required to continue in their positions under the supervision of the military or civil authorities appointed, by the Commander in Chief of the 12

13 occupant. These principles and practice have the sanction of all publicists who have considered the subject, and have been asserted by the Supreme Court and applied by the President of the United States. The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws war, as established by the usage of the of the world, and confirmed by the writings of publicists and decisions of courts in fine, from the law of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones." The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas MacArthur. According to that well-known principle in international law, the fact that a territory which has been occupied by an enemy comes again into the power of its legitimate government of sovereignty, "does not, except in a very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts done under his control, when they are not of a political complexion, administrative acts so done, to the extent that they take effect during the continuance of his control, and the various acts done during the same time by private persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of a community would be paralyzed by an invasion; and as between the state and the individuals the evil would be scarcely less, it would be hard for example that payment of taxes made under duress should be ignored, and it would be contrary to the general interest that the sentences passed upon criminals should be annulled by the disappearance of the 13

14 intrusive government ." (Hall, International Law, 7th ed., p. 518.) And when the occupation and the abandonment have been each an incident of the same war as in the present case, postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and establishing the so-called Republic of the Philippines. (Taylor, International Law, p. 615.) l. Sovereignty: 1. legal 2. political m. The doctrine of sovereignty as auto-limitation? Read: 1. REAGAN VS. COMMISIONER OF INTERNAL

REVENUE, 30

SCRA 968 "By the Agreement, it should be noted, the Philippine Government merely consents that the United States exercise jurisdiction in certain cases. The consent was given purely as a matter of comity, courtesy, or expediency. The Philippine Government has not abdicated its sovereignty over the bases as part of the Philippine territory or divested itself completely of jurisdiction over offenses committed therein. Under the terms of the treaty, the United States Government has prior or preferential but not exclusive jurisdiction of such offenses. The Philippine Government retains not only jurisdictional rights not granted, but also all such ceded rights as the United States Military authorities for reasons of their own decline to make use of. The first proposition is implied from the fact of Philippine sovereignty over the bases; the second from the express provisions of the treaty." "Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of sovereignty." Then came this paragraph dealing with the principle of autolimitation: "It is to be admitted any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as autolimitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal selfdetermination and self-restriction." A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence." The opinion 14

15 was at pains to point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance. 2. PEOPLE VS. GOZO, 53 SCRA 476 3. COMMISSIONER VS. ROBERTSON, 143 SCRA 397 Salaries of American employees in the US Bases in the Philippines are not subject to tax by the Philippine Government because that is what is provided for the RP US Military Basis Agreement. 2. Section 2. The Philippines renounces war as an instrument of national police, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity among all nations. a. difference between aggressive & defensive war b. Read: 1. MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70 The Philippines adopts the Universal Declaration of Human Rights since it is a generally accepted principle of international law. As such, it should be applied to illegal aliens like the petitioner so that it would be a violation of the said international law to detain him for an unreasonable length of time since no vessel from his country is willing to take him. "The meaning of "reasonable time" depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of transportation, the diplomatic arrangements concerned and the efforts displayed to send the deportee away. Considering that this Government desires to expel the alien, and does not relish keeping him at the people's expense, we must presume it is making efforts to carry out the decree of exclusion by the highest officer of the land. On top of this presumption assurances were made during the oral argument that the Government is really trying to expedite the expulsion of this petitioner. On the other hand, the record fails to show how long he has been under confinement since the last time he was apprehended. Neither does he indicate neglected opportunities to send him abroad. And unless it is shown that the deportee is being indefinitely imprisoned under the pretense of awaiting a chance for deportation 3 or unless the Government admits that it can not deport him or unless the detainee is being held for too long a period our courts will not interfere. 2.

KURODA VS. JALANDONI, 83 Phil 171 Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in violation of the Hague Convention on Rules and Regulations covering Land Warfare and 15

16 the Geneva Convention because the Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally accepted principals of international law. In facts these rules and principles were accepted by the two belligerent nation the United State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rule and principle of international law as continued inn treaties to which our government may have been or shall be a signatory. Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the sovereignty of United States and thus we were equally bound together with the United States and with Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of trying and punishing those who committed crimes against crimes against our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372): 3. SALONGA VS. HERMOSO, 97 SCRA 121 4. AGUSTIN VS. EDU, 88 SCRA 195 The Geneva Convention on Road Signs and Signals, is also considered part of the law of the Philippines since the same is a generally accepted principle of international law in accordance with the Incorporation clause of the Constitution. 4) AGUSTIN VS. EDU, 88 SCRA 195 5. REYES VS. BAGATSING,125 SCRA 553 Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this 16

17 case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. Without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500 feet from the situs of the rally or demonstration. Section 3. Civilian authority is, at all times supreme over the military. The armed forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. See also: Art. VII, Sec. 18 Art. XVI, Sec. 5 (2) Art. XVI, Sec. 5 (4) Section 4. The prime duty of the government is to serve and protect the people. The Government may call upon the people to defend the State and in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal and military service. Read: 1. PEOPLE VS. LAGMAN, 66 Phil. 13 “The appellant’s argument that he does not want to join the armed forces because “he does not want to kill or be killed” and that “he has no military inclination” is not acceptable because it is his obligation to join the armed forces in connection with the “defense of the State” provision of the Constitution. 2. PEOPLE VS. MANAYAO, 78 Phil. 721 3. PD1706, August 8, 1980 4. Exec. Order No. 264 Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. Section 6. The separation of church and State shall be inviolable. Read: 17

18 1) PAMIL VS. TELERON, 86 SCRA 413 2) GERMAN VS. BARANGAN, 135 SCRA 514 (NOTE: Read the dissenting opinions in both cases) 3) Other provisions: Other provisions on church & state: 1. ART. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS. 2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, nonprofit cemeteries…actually, directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 3. ART. VI, Sec. 29 .(2). No public money or property shall be appropriated, applied, paid, for the benefit, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or religion, except when such priest, minister.. is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 4. ART. IX, C, 2(5). Religious denominations and sects shall not be registered…as political parties. (NOTE: Religious organizations are also prohibited ion connection with sectoral representatives under Art. VI) 5. ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall be allowed to be taught to their children in elementary and high schools within the regular class hours by instructors designated or approved by religious authorities to which said children belong, without additional cost to the government. Sections 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination, Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. 1. meaning of "nuclear-free" Philippines; 2. . Art. XVIII, Secs. 4 & 25 Sections 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.. Section 10. The state shall promote social justice in all phases of national development. 18

19 Section 11. The state values the dignity of every human person and guarantees full respect for human rights. a. Read together with entire provisions of Article XIII Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civil efficiency and the development of moral character shall receive the support the support of the government. NOTE: Father Bernas opines that this provision does not take a stand on divorce. As such, a Divorce Law to be passed by Congress may or may not be unconstitutional. But definitely, a law allowing abortion , other than therapeutic, is unconstitutional. 1. Read together with the entire provisions of Article XV. 2. Read: a) GINSBERG VS. NEW YORK, 390 US 629 (1969) A law prohibiting the sale of “girlie magazines” [bold?) is constitutional and does not violate the above provision. This is so because parents could buy said magazines for their children if they believe the same is already suitable to the understanding of their child. This is in accordance with this provision which states that the parents have the “natural and primary right in rearing their child for civic efficiency…” b) MEYER VS. NEBRASKA, 260 US 260 (1922) c) PIERCE VS. SOCIETY OF SISTERS, 268 US 510 (1925) A law requiring small kids to be enrolled in public schools only is unconstitutional since it interferes with the right of parents in rearing their children. They have the right to choose which school is best suited for the development of their children without interference from the State. d) PACU VS. SECRETARY OF EDUCATION, 97 Phil. 806 e) CABANAS VS. PILAPIL, 58 SCRA 94 Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. Read: 1) PD 684 2) PD 935 3) PD 1102 4) PD 603; see the objectives of the law Sections 14. The State recognizes the role of women in nation building, and shall ensure the fundamental equality before the law of men and women. 19

20 Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Section 17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote human liberation and development. 1) Read together with Article XIV Read : VILLEGAS VS. SUBIDO, 109 SCRA 1 OPOSA VS. FACTORAN, July 30, 1993; In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The minors-petitioners have the personality to sue since the case deals with the timber licensing agreements entered into by the government which if not stopped would be prejudicial to their future. This is so because the DENR holds in trust for the benefit of plaintiff minors and succeeding generations the natural resources of the country. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, 20

21 wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the wellfounded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.

21

22 As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. 1) Read together with Section 3, Article XIII, 1987 Constitution. 2) Compare it with Section 9, Article II, 1973 Constitution. 3) Read: a. VICTORIANO VS. ELIZALDE POPE WORKERS UNION, 59 SCRA 54 The right to religion prevails over contractual or legal rights. As such, an Iglesia Ni Kristo member may refuse to join a Union and despite the fact that there is a closed shop agreement in the establishment where he was employed, his employment could not be validly terminated for his nonmembership in the majority union therein. Section 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

See Art. XII Section 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. a. Do we practice the free enterprise system in the Philippines or is it the welfare state concept? Distinguish the two. b. Read: ACCFA VS. CUGCO, 30 SCRA 649 (Note: Read the separate opinion of former Chief Justice ENRIQUE FERNANDO only) The Philippines never practiced the free enterprise system. It is the welfare-state concept which is being followed as shown by the constitutional provision on agrarian reform, housing, protection to labor… (NOTE, however, that the 1987 Constitution have provisions which provide for “free enterprise) PHILIPPINE COCONUT DESICCATORS VS. PHILIPPINE COCONUT AUTHORITY, 286 SCRA 109 Mendoza, J. The Philippine Constitutions, starting from the 1935 document, HAVE REPUDIATED laissez faire (or the doctrine of free enterprise) as an economic principle, and although the present 22

23 Constitution enshrines free enterprise as a policy, it nevertheless reserves to the government the power to intervene whenever necessary to promote the general welfare. As such, free enterprise does not call for the removal of “protective regulations” for the benefit of the general public. This is so because under Art. XII, Sections 6 and 9, it is very clear that the government reserves the power to intervene whenever necessary to promote the general welfare and when the public interest so requires.

Section 21. The State shall promote comprehensive rural development and agrarian reform. a. Read together with Secs. 4-10, Article XIII of the 1987 Constitution b. Read PD 27 - as to the extent of land reform under the MARCOS regime c. Read RA 3844 & 6389, as amended - THE CODE OF AGRARIAN REFORMS OF THE PHILIPPINES (Read the policy of the state on this matter) d .Read the COMPREHENSIVE AGRARIAN REFORM PROGRAM LAW, RA No. 6657 as signed into law by the President on June 7, 1988. e. Read: Association of Small Landowners vs. Hon. Secretary of Agrarian Reform, July 14, 1989 Sections 22. The State recognizes and promotes the right of indigenous cultural communities within the framework of national unity and development. To be discussed later with Art. X, Secs. 15- 21. Other provisions on indigenous cultural communities: 1. Art. VI, Sec. 5(2) 2. Art. X, Secs. 15 - 21 3. Art. XII, Sec. 5 4. Art. XIII, Sec. 6 5. Art. XIV, Sec. 17 6. Art. XVI, Sec. 12 Section 23. The State shall encourage nongovernmental, community based, or sectoral organizations that promote the welfare of the nation. Section 24. The State recognizes the vital role of communication and information in nation-building. Section 25. The State shall ensure the autonomy of local governments. a. Define "autonomy" b. See Art. X 23

24 Read the 1991 New Local Government Code and enumerate its provisions evidencing "autonomy" to local government units. Section 26. The State guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. To be discussed under Article XI. a. Please see RA 3019, The Anti-Graft and Corrupt Practices Act, as amended by RA 3047, PD 77 and BP 195.. b. PD 749, July 18, 1975, which grants immunity from prosecution to givers of bribes and other gifts and to their accomplices in bribery other than graft cases against public officers. c. RA 1379. Forfeiture in favor of the State any property found to have been illegally acquired by a public officer or employee. Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of public disclosure of all its transactions involving public interest.

Power of Congress to conduct inquiries in aid of legislation; Public disclosure of government transactions CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704 Sandoval-Gutierrez, J. The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 1[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 1[4]

Annex “E” of the Petition in G.R. No. 174318. 24

25 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; 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. 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. 2[6] On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.3[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,4[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. All were disregarded by the petitioners.

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.

Hence, Chairman Sabio filed with the Supreme 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 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. 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 self2[6]

Annex “F” of the Petition in G.R. No. 174318. Annex “G” of the Petition in G.R. No. 174318. 4[8] Annex “A” of the Petition in G.R. No. 174318. 3[7]

25

26 incrimination; and sixth, the inquiry does not constitute undue encroachment into justiciable controversies.

I S S U E:

Is Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution? Is its implementation wherein the petitioners are exempt from appearing in investigations involving their transactions violates Section 28, Art. II of the Constitution?

HELD:

Section 4(b) of E.O. No.1, which limits the power of legislative inquiry by exempting all PCGG members or staff from testifying in any judicial, legislative or administrative proceeding 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.

Said provision of EO No. 1 violates Section 28, Art. II of the Constitution which mandates that “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.”

Read together with Section 7, Article III, Sec. 20, Art. VI and Section 1, Art. XI of the 1987 Constitution. PART V ARTICLE VI - THE LEGISLATIVE DEPARTMENT

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. a. Define legislative power - Basic concepts of the grant of legislative power: 1. it cannot pass irrepealable laws 2. principle of separation of powers 3. non-delegability of legislative powers - reason for principle that the legislature cannot pass irrepeablable laws - Separation of Powers Read: 26

27 a. ANGARA VS. ELECTORAL COMMISSION, 63 Phil. 139 b. PLANAS VS. GIL, 67 Phil. 62 c. LUZON STEVEDORING VS. SSS, 34 SCRA 178 d. GARCIA VS. MACARAIG, 39 SCRA 106 e. Bondoc vs. HRET, Sept. 26, 1991 f. DEFENSOR SANTIAGO VS. COMELEC, 270 SCRA 106 b. Nature of legislative power c. What are the limitations to the grant of legislative powers to the legislature? d. Explain the doctrine of non-delegation power. e. Permissive delegation of legislative power. 1) Sec. 23 (2) of Article VI (Emergency powers to the President in case of war or other national emergency, for a limited period and subject to such restrictions as Congress may provide, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by Resolution of Congress, such powers shall cease upon the next adjournment thereof. 2) Sec. 28 (2) of Article VI. The Congress may by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the government. - Other exceptions: traditional 3) Delegation to local governments The reason behind this delegation is because the local government is deemed to know better the needs of the people therein. a. See Section 5 of Article X b. Read: aa. RUBI VS. PROVINCIAL BOARD, 39 Phil. 660 bb. PEOPLE VS. VERA, 65 Phil 56 A law delegating to the local government units the power to fund the salary of probation officers in their area is unconstitutional for violation of the equal protection of the laws. In areas where there is a probation officer because the local government unit appropriated an amount for his salaries, convicts may avail of probation while in places where no funds were set aside for probation officers, convicts therein could not apply for probation. d. Reason for the delegation 4) Delegation of Rule-making power to administrative bodies 5) Delegation to the People (Section 2, Art. XVII of the Constitution and Section 32, Article VI---The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress of local legislative body after the registration of a petition thereof signed by at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters thereof. 27

28 f. Delegation of rule-making power to administrative bodies. 1) What is the completeness test? The sufficiency of standard test? Read: 1. PELAEZ VS. AUDITOR GENERAL, 15 SCRA 569 During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33) municipalities The third paragraph of Section 3 of Republic Act No. 2370, reads: Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress. Pursuant to the first two (2) paragraphs of the same Section 3: All barrios existing at the time of the passage of this Act shall come under the provisions hereof. Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an existing one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire membership of the said council: Provided, however, That no new barrio may be created if its population is less than five hundred persons. Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities?" Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides: The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or 28

29 diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed. Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a mere transfer of territory from an already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binañgonan [34 Phil. 518, 519-5201) in consequence of the fixing and definition, pursuant to Act No. 1748, of the common boundaries of two municipalities. It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities the authority to create municipal corporations is essentially legislative in nature. Although 1a Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and 29

30 (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system. Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68, the President: ... may change the seat of the government within any subdivision to such place therein as the public welfare may require. At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest," respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these cases as all judicial pronouncements must be construed in relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and have no binding effect. The law construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations to promote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale of speculative securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions, calling for the determination of questions of fact. 30

31

2 . TUPAS VS. OPLE, 137 SCRA 108 (Most representative) 3. US VS. ANG TANG HO, 43 Phil. 1 At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances, regulating the distribution and sale thereof, and authorizing the Governor-General, with the consent of the Council of State, to issue the necessary rules and regulations therefor, and making an appropriation for this purpose," the material provisions of which are as follows: Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit: (a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn. August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold. August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of rice at an excessive price as follows: The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows: That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty centavos (P.80), which is a price greater than that fixed by Executive Order No. 53 of the GovernorGeneral of the Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868. Contrary to law. Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine of P500, from which he appealed to this court, claiming that the lower court erred in finding Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the offense charged, and in imposing the sentence. The official records show that the Act was to take effect on its approval; that it was approved July 30, 1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that the law was first published on the 13th of August, 1919; and that the proclamation itself was first published on the 20th of August, 1919. 31

32

The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes the Governor-General to fix the price at which rice should be sold. It will be noted that section 1 authorizes the Governor-General, with the consent of the Council of State, for any cause resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate temporary rules and emergency measures for carrying out the purposes of the Act. By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the GovernorGeneral. The Legislature does not undertake to specify or define under what conditions or for what reasons the Governor-General shall issue the proclamation, but says that it may be issued "for any cause," and leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also says: "For any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not specify or define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act also says that the Governor-General, "with the consent of the Council of State," is authorized to issue and promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does not specify or define what is a temporary rule or an emergency measure, or how long such temporary rules or emergency measures shall remain in force and effect, or when they shall take effect. That is to say, the Legislature itself has not in any manner specified or defined any basis for the order, but has left it to the sole judgment and discretion of the Governor-General to say what is or what is not "a cause," and what is or what is not "an extraordinary rise in the price of rice," and as to what is a temporary rule or an emergency measure for the carrying out the purposes of the Act. Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing the minimum price at which rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal. There may not have been any cause, and the price may not have been extraordinary, and there may not have been an emergency, but, if the GovernorGeneral found the existence of such facts and issued a proclamation, and rice is sold at any higher price, the seller commits a crime. By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it 32

33 is for the Judiciary only to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power to another, and, if so, was that power legally delegated by Act No. 2868? In other words, does the Act delegate legislative power to the Governor-General? By the Organic Law, all Legislative power is vested in the Legislature, and the power conferred upon the Legislature to make laws cannot be delegated to the Governor-General, or any one else. The Legislature cannot delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and within itself, and it does nothing more than to authorize the Governor-General to make rules and regulations to carry the law into effect, then the Legislature itself created the law. There is no delegation of power and it is valid. On the other hand, if the Act within itself does not define crime, and is not a law, and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, then the Act is a delegation of legislative power, is unconstitutional and void. The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to maters involving the exercise of a legislative discretion that could not be delegated, and without which the act could not possibly be put in use as an act in conformity to which all fire insurance policies were required to be issued. The result of all the cases on this subject is that a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgment of the electors or other appointee or delegate of the legislature, so that, in form and substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event. 4. TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208 5. FREE TELEPHONE WORKERS UNION, 108 SCRA 757 (Affecting National interest) 6. PHILCOMSAT VS. ALCUAZ, December 18, 1989 Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner prescribed by 33

34 the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by the statute for the lawful exercise thereof. Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and prescribe rates pertinent to the operation of public service communications which necessarily include the power to promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or components of the communications systems contemplated therein should be maintained at reasonable rates. II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public service could have been shown and demonstrated to respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process. Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing are not required, but where an order applies to a named person, as in the instant case, the function involved is adjudicatory. Nonetheless, they insist that under the facts obtaining the order in question need 34

35 not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of data or information since respondent is currently engaged in a continuing review of the rates charged. We find merit in petitioner's contention. In Vigan Electric Light Co., Inc. vs. Public Service Commission, we made a categorical classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus: Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a legislative character, such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasijudicial character, the valid exercise of which demands previous notice and hearing. This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. to wit: It is also clear from the authorities that where the function of the administrative body is legislative, notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or property are not involved, is not determined according to the same rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative 35

36 proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statements-without affording petitioner the benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not farfetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC based its questioned order. At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued pursuant to its quasijudicial functions. It, however, insists that notice and hearing are not necessary since the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit. g. May rules and regulations promulgated by administrative bodies/agencies have the force of law? penal law? In order to be considered as one with the force and effect of a penal law, what conditions must concur? See U.S. vs. GRIMMAUD, 220 U.S. 506 (1911) or the 1987 PHILIPPINE CONSTITUTION - a reviewer Primer by FR. JOAQUIN BERNAS, 1987 edition. 5. PEO. VS. ROSENTHAL, 68 Phil. 328 6. US VS. BARRIAS, 11 Phil. 327 7. VILLEGAS VS. HIU CHIONG TSAI PAO HO, 86 SCRA 270 36

37 h. Delegation to the people. See Section 2(1) of Art. XVII. i. Classify the membership of the legislative department. j. Manner of election and selection 1) Read again TUPAS VS. OPLE, 137 SCRA 108 Sections 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided for by law. Section 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 35 years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than 2 years immediately preceding the day of the election. Section 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the 30th day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Qualifications, term of office, etc., of a senator or member of the House of Representatives. Drug-testing requirement on all candidates before their certificates of candidacy will be admitted by the COMELEC, unconstitutional. SOCIAL JUSTICE SOCIETY (SJS) DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), ATTY. MANUEL J. LASERNA, JR vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AQUILINO Q. PIMENTEL, JR. Vsa. COMMISSION ON ELECTIONS, G.R. No. 161658, November 3, 2008 VELASCO, JR., J.:

37

38 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 [1]candidates for public office, [2]students of secondary and tertiary schools, [3]officers and employees of public and private offices, and[4] persons charged before the prosecutor’s office with certain offenses, among other personalities, is put in issue. 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. x x x 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. x x x The following shall be subjected to undergo drug testing: xxxx (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 x x x; (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, x x x 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; xxxx (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. 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: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: 38

39 SEC. 36. Authorized Drug Testing.—x x x xxxx (g) All candidates for public office x x x 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 x x x. 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[:] SECTION 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. x x x 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 x x x. 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. x x x 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 re-election in the May 10, 2004 elections, 5[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. 5[1]

Re-elected as senator in the 2004 elections.

39

40

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 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. 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. 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.6[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.7[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. 8[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 6[2]

Rollo (G.R. No. 158633), pp. 184-185. Dumlao v. COMELEC, No. L-52245, January 22, 1980, 95 SCRA 392, 401. 8[4] Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 939 (2003). 7[3]

40

41 fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.9[5] 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.10[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 (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, 11[7] or alter or enlarge the Constitution. 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.12[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.13[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: 9[5]

Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740. 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. 11[7] Palmer v. Board of Education, 276 NY 222 11 NE 2d 887. 12[8] Cruz, CONSTITUTIONAL LAW 4 (2000). 13[9] Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36 SCRA 228, 234. 10[6]

41

42

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 x x x 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.14[10] 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. 15[11] The substantive constitutional limitations are chiefly found in the Bill of Rights 16[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.17[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. 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 14[10]

50 Phil. 259, 309 (1927). J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 604 (1996). 16[12] Id. 17[13] See concurring opinion in Go v. Commision on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, 753. 15[11]

42

43 purpose, per the policy-declaration 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 x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.”18[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: 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] x x x apply to the Board x x x 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 x x x 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 x x x. xxxx 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: xxxx 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.19[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 seizure20[16] under Sec. 2, Art. III21[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),22[18] both fairly pertinent US Supreme Courtdecided cases involving the constitutionality of governmental search. 18[14]

RA 9165, Sec. 2. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661. 20[16] Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L20387, January 31, 1968, 22 SCRA 424, 444-445. 21[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. 22[18] 536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS 224-227 (2004). 19[15]

43

44

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 Amendment23[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 nonathletes 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 Fourth24[20] and 14th Amendments and declared the random drug-testing policy constitutional. 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 extracurricular 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 nondiscriminatory. 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 23[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. 24[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).

44

45 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, 25[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 drug-infested school are visited not just upon the users, but upon the entire student body and faculty.26[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. 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,” 27[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. 28[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.29[25] The essence of privacy is the right to be left alone. 30[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. 31[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.32[28] Authorities are agreed 25[21]

Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96. Rollo (G.R. No. 158633), p. 204, respondents’ Consolidated Memorandum. 27[23] Rollo (G.R. No. 157870), p. 10. 28[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. 26[22]

29[25]

Rollo (G.R. No. 158633), p. 9. Ople, supra note 16, at 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932]. 31[27] 62 Am. Jur. 2d, Privacy, Sec. 1. 32[28] 387 U.S. 523; cited in 2 Bernas, supra note 18, at 232. 30[26]

45

46 though that the right to privacy yields to certain paramount rights of the public and defers to the state’s exercise of police power.33[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.34[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.35[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. 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”?36[32] 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 x x x 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.37[33] In addition, the IRR issued by the DOH provides that access 33[29]

62 Am. Jur. 2d, Privacy, Sec. 17. Vernonia & Board of Education, supra notes 15 & 18. 35[31] Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra. 36[32] Supra note 16, at 166 & 169. 37[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[30]

46

47 to the drug results shall be on the “need to know” basis; 38[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.” 39[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. 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. 40[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 socialeconomic 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. 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. 41[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.42[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 38[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. 39[35] Id., Sec. 7 [10.4]. 40[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. 41[37] CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND EMPLOYEES, Sec. 2. 42[38] CONSTITUTION, Art. XI, Sec. 1.

47

48 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. 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.43[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. 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.44[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) 43[39]

Tatad, supra note 6, at 351. Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, CONST. LIM. 630 (8th ed.). 44[40]

48

49 UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. Sections 5. [1] The House of representatives shall be composed of not more than 250 members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations. [2] The party-list representatives shall constitute 20% of the total number of representatives including those under the party-list. For three (3) consecutive terms after the ratification of this Constitution, ½ of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women youth, and such other sectors, as may be provided by law, except the religious sector. [3] Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Each city with a population of at least one hundred fifty thousand, or each province, shall have at least one representative. [4] Within 3 years following the return of every census, the Congress shall make a reapportionment of legislative districts based on standards provided in this section Re-apportionment of a single legislative district to make it two (2) like Cagayan de Oro City. Must there be a plebiscite first before a law adding another legislative district to a city or province as a result of increase in its income and population is considered valid and enforceable? Is Section 10, Art. X of the Constitution applicable in the creation of additional legislative districts? ROGELIO BAGABUYO VS. COMELEC, G.R. No. 176970, December 8, 2008 Before us is the petition for certiorari, prohibition, and mandamus,45 with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC) from implementing Resolution [1]

45[1]

Under Rule 65 of the Rules of Court.

49

50 No. 7837 on the ground that Republic Act No. 937146[2] – the law that Resolution No. 7837 implements – is unconstitutional. BACKGROUND FACTS On October 10, 2006, Cagayan de Oro’s then Congressman Constantino G. Jaraula filed and sponsored House Bill No. 5859: “An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro.”47[3] This law eventually became Republic Act (R.A.) No. 9371.48[4] It increased Cagayan de Oro’s legislative district from one to two. For the election of May 2007, Cagayan de Oro’s voters would be classified as belonging to either the first or the second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress as well as eight members of the Sangguniang Panglungsod. Section 1 of R.A. No. 9371 apportioned the City’s barangays as follows: Legislative Districts – The lone legislative district of the City of Cagayan De Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.49[5] On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 783750[6] implementing R.A. No. 9371. Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27, 2007.51[7] On 10 April 2008, the petitioner amended the petition to include the following as respondents: Executive Secretary Eduardo Ermita; the Secretary of the Department of Budget and Management; the Chairman of the Commission on Audit; the Mayor and the members of the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of Canvassers.52[8] In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds, the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the division or conversion of a local government unit. He prayed for the issuance of an order directing the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single legislative district for Cagayan de Oro.

46[2]

“An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro.”

47[3]

Rollo, p. 214.

48[4]

Id., p. 25.

49[5]

Id., p. 25.

50[6]

Id., pp. 23-24.

51[7]

Id., pp. 3-22.

52[8]

Id., pp. 60-93

50

51 Since the Court did not grant the petitioner’s prayer for a temporary restraining order or writ of preliminary injunction, the May 14 National and Local Elections proceeded according to R.A. No. 9371 and Resolution No. 7837. The respondent’s Comment on the petition, filed through the Office of the Solicitor General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the representation of Cagayan de Oro City in the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or barangay; in this case, no such creation, division, merger, abolition or alteration of boundaries of a local government unit took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de Oro’s territory, population and income classification; hence, no plebiscite is required. The petitioner argued in his reply that: 1) pursuant to the Court’s ruling in Del Mar v. PAGCOR,53[9] the Court may take cognizance of this petition if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City’s reapportionment under R.A. No. 9371 falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the Constitution; 3) the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator – the material change in the political and economic rights of the local government units directly affected, as well as of the people therein; 4) a voter’s sovereign power to decide on who should be elected as the entire city’s Congressman was arbitrarily reduced by at least one half because the questioned law and resolution only allowed him to vote and be voted for in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his right to elect the Congressman and the members of the city council for the other legislative district, and 6) government funds were illegally disbursed without prior approval by the sovereign electorate of Cagayan De Oro City.54[10] THE ISSUES The core issues, based on the petition and the parties’ memoranda, can be limited to the following contentious points: 1

Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be dismissed on this ground?

2

Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or does it involve the division and conversion of a local government unit?

3

Does R.A. No. 9371 violate the equality of representation doctrine? OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.

53[9]

G.R. No. 138298, November 29, 2000, 346 SCRA 485.

54 [10]

Rollo, pp. 123-148.

51

52 The hierarchy of courts principle. The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.55[11] It was pursuant to this original jurisdiction that the petitioner filed the present petition. While this jurisdiction is shared with the Court of Appeals 56[12] and the RTCs,57[13] a direct invocation of the Supreme Court’s jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction, justify the existence of this rule otherwise known as the “principle of hierarchy of courts.” More generally stated, the principle requires that recourse must first be made to the lowerranked court exercising concurrent jurisdiction with a higher court.58[14] Among the cases we have considered sufficiently special and important to be exceptions to the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against our nation’s lawmakers when the validity of their enactments is assailed. 59[15] The present petition is of this nature; its subject matter and the nature of the issues raised – among them, whether legislative reapportionment involves a division of Cagayan de Oro City as a local government unit – are reasons enough for considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as well a resolution of the COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65 petition for certiorari.60[16] For these reasons, we do not see the principle of hierarchy of courts to be a stumbling block in our consideration of the present case. The Requirement.

Plebiscite

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local government unit, and does not merely provide for the City’s legislative apportionment. This argument essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of legislative districts and division of local government units. Legislative apportionment is defined by Black’s Law Dictionary as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body.61[17] It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts.62[18] Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.63[19] 55[11]

CONSTITUTION, Article VIII, Section 5(1).

56[12]

Sec. 9 (1), B.P. Blg. 129.

57[13]

Sec. 21 (1), B.P. Blg. 129.

58[14]

See: People v. Cuaresma, G.R. No. 67787, April 18, 1989, 172 SCRA 415. Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

59[15] 60[16] 61[17] 62[18] 63[19]

See: Bautista v. COMELEC, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299. Black’s Law Dictionary, 5th Edition, p. 91. Clapp, James E., Dictionary of Law (2000), p. 33. Black’s Law Dictionary,

supra note 17, p. 1137.

52

53 Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative apportionment under its Section 5 which provides: Sec. 5(1). (1) The House of Representatives shall be composed of not more than two hundred fifty members unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations. xxx (3) Each legislative district shall comprise, as far as practicable, continuous, 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. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. Separately from the legislative districts that legal apportionment or reapportionment speaks of, are the local government units (historically and generically referred to as “municipal corporations”) that the Constitution itself classified into provinces, cities, municipalities and barangays.64[20] In its strict and proper sense, a municipality has been defined as “a body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof.” 65[21] The creation, division, merger, abolition or alteration of boundary of local government units, i.e., of provinces, cities, municipalities, and barangays, are covered by the Article on Local Government (Article X). Section 10 of this Article provides: 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 unit directly affected. Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment of legislative districts,66[22] and likewise acts on local government units by setting the standards for their creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing, merging, abolishing local government units and altering their boundaries through legislation. Other than this, not much commonality exists between the two provisions since they are inherently different although they interface and relate with one another.

64[20]

CONSTITUTION, Art. X, Sec. 1.

65[21]

Martin, Public Corporations, Revised 1983 Edition, p. 5.

66[22]

Article VI, Section 5; Montejo v. COMELEC, 312 Phil. 492 (1995).

53

54 The concern that leaps from the text of Article VI, Section 5 is political representation and the means to make a legislative district sufficiently represented so that the people can be effectively heard. As above stated, the aim of legislative apportionment is “to equalize population and voting power among districts.”67[23] Hence, emphasis is given to the number of people represented; the uniform and progressive ratio to be observed among the representative districts; and accessibility and commonality of interests in terms of each district being, as far as practicable, continuous, compact and adjacent territory. In terms of the people represented, every city with at least 250,000 people and every province (irrespective of population) is entitled to one representative. In this sense, legislative districts, on the one hand, and provinces and cities, on the other, relate and interface with each other. To ensure continued adherence to the required standards of apportionment, Section 5(4) specifically mandates reapportionment as soon as the given standards are met. In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly speaks of how local government units may be “created, divided, merged, abolished, or its boundary substantially altered.” Its concern is the commencement, the termination, and the modification of local government units’ corporate existence and territorial coverage; and it speaks of two specific standards that must be observed in implementing this concern, namely, the criteria established in the local government code and the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of income, population and land area are specified as verifiable indicators of viability and capacity to provide services.68[24] The division or merger of existing units must comply with the same requirements (since a new local government unit will come into being), provided that a division shall not reduce the income, population, or land area of the unit affected to less than the minimum requirement prescribed in the Code.69[25] A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit.70[26] In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. In Tobias v. Abalos,71[27] a case that arose from the division of the congressional district formerly covering San Juan and Mandaluyong into separate districts, we confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment. The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of its conversion into a highly urbanized city, while none was held for San Juan. In explaining why this happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by Article X, Section 10 the Local Government Code; the creation of a new legislative district only followed as a consequence. In other words, the apportionment alone and by itself did 67 [23]

Supra note 18.

68[24]

Section 7, Local Government Code.

69[25]

CONSTITUTION, Art. X, Sec. 10.

70[26]

SEC. 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. 71[27]

G.R. No. 114783, December 8, 1994, 239 SCRA 106.

54

55 not call for a plebiscite, so that none was needed for San Juan where only a reapportionment took place. The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two provisions, the nature of the concepts they embody as heretofore discussed, and their areas of application. A Bit of History. In Macias v. COMELEC,72[28] we first jurisprudentially acknowledged the American roots of our apportionment provision, noting its roots from the fourteenth Amendment73[29] of the U.S. Constitution and from the constitutions of some American states. The Philippine Organic Act of 1902 created the Philippine Assembly,74[30] the body that acted as the lower house of the bicameral legislature under the Americans, with the Philippine Commission acting as the upper house. While the members of the Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate, the members of the Philippine Assembly were elected by representative districts previously delineated under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats of the Philippine Assembly among the provinces as nearly as practicable according to population. Thus, legislative apportionment first started in our country. The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision, dividing the country into 12 senate districts and 90 representative districts electing one delegate each to the House of Representatives. Section 16 of the Act specifically vested the Philippine Legislature with the authority to redistrict the Philippine Islands. Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment together with “district” as the basic unit of apportionment; the concern was “equality of representation . . . as an essential feature of republican institutions” as expressed in the leading case of Macias v. COMELEC.75[31] The case ruled that inequality of representation is a justiciable, not a political issue, which ruling was reiterated in Montejo v. COMELEC.76[32] Notably, no issue regarding the holding of a plebiscite ever came up in these cases and the others that followed, as no plebiscite was required. Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation “in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio” with each district being, as far as practicable, contiguous, compact and adjacent territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only from the previous one by the presence of party-list representatives. In neither Constitution was a plebiscite required. The need for a plebiscite in the creation, division, merger, or abolition of local government units was not constitutionally enshrined until the 1973 Constitution. However, as early as 1959, R.A. No. 2264 77[33] 72[28]

G.R. No. L-18684, September 14, 1961, 113 Phil. 1 (1961).

73[29]

The Fourteenth Amendment of the U.S. Constitution provides the basis for the requirement of an equitable apportionment scheme. See generally, Colegrove v. Green, 328 U.S. 549, cited in Macias v. COMELEC, supra note 28. 74[30]

People v. Santiago, 43 Phil 120 (1922).

75[31]

Supra note 28.

76[32]

G.R. No. 118702, March 16, 1995.

77[33]

“An Act Amending the Laws Governing Local Governments by Increasing their Autonomy and Reorganizing Provincial Governments.”

55

56 required, in the creation of barrios by Provincial Boards, that the creation and definition of boundaries be “upon petition of a majority of the voters in the areas affected.” In 1961, the Charter of the City of Caloocan (R.A. No. 3278) carried this further by requiring that the “Act shall take effect after a majority of voters of the Municipality of Caloocan vote in favor of the conversion of their municipality into a city in a plebiscite.” This was followed up to 1972 by other legislative enactments requiring a plebiscite as a condition for the creation and conversion of local government units as well as the transfer of sitios from one legislative unit to another.78[34] In 1973, the plebiscite requirement was accorded constitutional status. Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a requirement in legislative apportionment or reapportionment. After it became constitutionally entrenched, a plebiscite was also always identified with the creation, division, merger, abolition and alteration of boundaries of local government units, never with the concept of legislative apportionment. Nature and Areas of Application. The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit because it is the basis for the election of a member of the House of Representatives and members of the local legislative body. It is not, however, a political subdivision through which functions of government are carried out. It can more appropriately be described as a representative unit that may or may not encompass the whole of a city or a province, but unlike the latter, it is not a corporate unit. Not being a corporate unit, a district does not act for and in behalf of the people comprising the district; it merely delineates the areas occupied by the people who will choose a representative in their national affairs. Unlike a province, which has a governor; a city or a municipality, which has a mayor; and a barangay, which has a punong barangay, a district does not have its own chief executive. The role of the congressman that it elects is to ensure that the voice of the people of the district is heard in Congress, not to oversee the affairs of the legislative district. Not being a corporate unit also signifies that it has no legal personality that must be created or dissolved and has no capacity to act. Hence, there is no need for any plebiscite in the creation, dissolution or any other similar action on a legislative district. The local government units, on the other hand, are political and corporate units. They are the territorial and political subdivisions of the state.79[35] They possess legal personality on the authority of the Constitution and by action of the Legislature. The Constitution defines them as entities that Congress can, by law, create, divide, abolish, merge; or whose boundaries can be altered based on standards again established by both the Constitution and the Legislature.80[36] A local government unit’s corporate existence begins upon the election and qualification of its chief executive and a majority of the members of its Sanggunian.81[37]

78 [34]

A plebiscite was a conditio sine qua non in the creation of municipal corporations including, but not limited to, the following: 1) the City of Angeles, R.A. 3700; 2) the Municipality of Pio Duran in the Province of Albay, R.A. 3817; 3) the Provinces of Northern Samar, Eastern Samar and Western Samar, R.A. 4221; 4) the Provinces of Agusan del Norte and Agusan del Sur, R.A. 4979. The prior approval of a majority of the qualified voters of certain sitios of the Municipality of Anilao was also required before the transfer of the same sitios to the Municipality of Banate under R.A. 4614 took effect.

79[35]

Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., G.R. No. 135962, March 27, 2000, 328 SCRA 836. 80[36] CONSTITUTION, Article X, Secs. 3 and 10; Aquilino Pimentel, Jr., The Local Government Code of 1991: The Key to National Development, p. 5. 81[37] Sec. 14, Local Government Code.

56

57 As a political subdivision, a local government unit is an “instrumentality of the state in carrying out the functions of government.”82[38] As a corporate entity with a distinct and separate juridical personality from the State, it exercises special functions for the sole benefit of its constituents. It acts as “an agency of the community in the administration of local affairs”83[39] and the mediums through which the people act in their corporate capacity on local concerns. 84[40] In light of these roles, the Constitution saw it fit to expressly secure the consent of the people affected by the creation, division, merger, abolition or alteration of boundaries of local government units through a plebiscite. These considerations clearly show the distinctions between a legislative apportionment or reapportionment and the division of a local government unit. Historically and by its intrinsic nature, a legislative apportionment does not mean, and does not even imply, a division of a local government unit where the apportionment takes place. Thus, the plebiscite requirement that applies to the division of a province, city, municipality or barangay under the Local Government Code should not apply to and be a requisite for the validity of a legislative apportionment or reapportionment. R.A. No. 9371 and COMELEC Res. No. 7837 R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core provision – Section 1 – provides: SECTION 1. Legislative Districts. — The lone legislative district of the City of Cagayan de Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsagan, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district. Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes place or is mandated. Cagayan de Oro City politically remains a single unit and its administration is not divided along territorial lines. Its territory remains completely whole and intact; there is only the addition of another legislative district and the delineation of the city into two districts for purposes of representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts. Admittedly, the legislative reapportionment carries effects beyond the creation of another congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional 82[38]

Lidasan v. Commission on Elections, G.R. No. L-28089 October 25, 1967, 21 SCRA 496.

83[39]

Ibid.

84[40]

Section 15 of the Local Government Code provides: Political and Corporate Nature of Local Government Units. - Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory.

57

58 apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly traceable to R.A. No. 9371 but to another law – R.A. No. 663685[41] – whose Section 3 provides: SECTION 3.Other Cities. — The provision of any law to the contrary notwithstanding the City of Cebu, City of Davao, and any other city with more than one representative district shall have eight (8) councilors for each district who shall be residents thereof to be elected by the qualified voters therein, provided that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a representative district shall have twelve (12) councilors each and all other cities shall have ten (10) councilors each to be elected at large by the qualified voters of the said cities: Provided, That in no case shall the present number of councilors according to their charters be reduced. However, neither does this law have the effect of dividing the City of Cagayan de Oro into two political and corporate units and territories. Rather than divide the city either territorially or as a corporate entity, the effect is merely to enhance voter representation by giving each city voter more and greater say, both in Congress and in the Sangguniang Panglunsod. To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and 12 city council members citywide for its population of approximately 500,000.86[42] By having two legislative districts, each of them with one congressman, Cagayan de Oro now effectively has two congressmen, each one representing 250,000 of the city’s population. In terms of services for city residents, this easily means better access to their congressman since each one now services only 250,000 constituents as against the 500,000 he used to represent. The same goes true for the Sangguniang Panglungsod with its ranks increased from 12 to 16 since each legislative district now has 8 councilors. In representation terms, the fewer constituents represented translate to a greater voice for each individual city resident in Congress and in the Sanggunian; each congressman and each councilor represents both a smaller area and fewer constituents whose fewer numbers are now concentrated in each representative. The City, for its part, now has twice the number of congressmen speaking for it and voting in the halls of Congress. Since the total number of congressmen in the country has not increased to the point of doubling its numbers, the presence of two congressman (instead of one) from the same city cannot but be a quantitative and proportional improvement in the representation of Cagayan de Oro City in Congress. Equality of representation. The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only 93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of rural barangays while District 2 is composed mostly of urban barangays.87[43] Thus, R.A. No. 9371 violates the principle of equality of representation. A clarification must be made. The law clearly provides that the basis for districting shall be the number of the inhabitants of a city or a province, not the number of registered voters therein. We settled this very same question in Herrera v. COMELEC88[44] when we interpreted a provision in R.A. No. 7166 and COMELEC Resolution No. 2313 that applied to the Province of 85[41] 86 [42]

87[43] 88[44]

Enacted into law on November 6, 1987. As provided by COMELEC Res. No. 7801 that COMELEC Res. No. 7837 superseded.

Rollo, p. 71. G.R. No. 131499, November 17, 1999, 318 SCRA 337.

58

59 Guimaras. We categorically ruled that the basis for districting is the number of inhabitants of the Province of Guimaras by municipality based on the official 1995 Census of Population as certified to by Tomas P. Africa, Administrator of the National Statistics Office. The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office which shows that barangays comprising Cagayan de Oro’s first district have a total population of 254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts.89[45] The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation.90[46] In fact, for cities, all it asks is that “each city with a population of at least two hundred fifty thousand shall have one representative,” while ensuring representation for every province regardless of the size of its population. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the Constitution leaves the local government units as they are found and does not require their division, merger or transfer to satisfy the numerical standard it imposes. Its requirements are satisfied despite some numerical disparity if the units are contiguous, compact and adjacent as far as practicable. The petitioner’s contention that there is a resulting inequality in the division of Cagayan de Oro City into two districts because the barangays in the first district are mostly rural barangays while the second district is mostly urban, is largely unsubstantiated. But even if backed up by proper proof, we cannot question the division on the basis of the difference in the barangays’ levels of development or developmental focus as these are not part of the constitutional standards for legislative apportionment or reapportionment. What the components of the two districts of Cagayan de Oro would be is a matter for the lawmakers to determine as a matter of policy. In the absence of any grave abuse of discretion or violation of the established legal parameters, this Court cannot intrude into the wisdom of these policies.91[47] WHEREFORE, we hereby DISMISS the petition for lack of merit. Formula in determining the party-list representatives Is the 20% ceiling mandatory? (Veterans vs. COMELEC Formula abandoned)

89[45]

Total Population by Province, City, Municipality and Barangay: as of August 1, 2007 , last accessed November 5, 2008. 90[46] Harlan, dissenting opinion in Baker v. Carr, 369 U. S. 186 citing Allied Stores of Ohio v. Bowers, 358 U.S. 522 and McGowan v. Maryland, 366 U.S. 420, in which the Supreme Court ruled that the Equal Protection Clause does not demand of legislation “finicky or exact conformity to abstract correlation xxx. The Constitution is satisfied if a legislature responds to the practical living facts with which it deals. Through what precise points in a field of many competing pressures a legislature might most suitably have drawn its lines is not a question for judicial re-examination. It is enough to satisfy the Constitution that in drawing them the principle of reason has not been disregarded. And what degree of uniformity reason demands of a statute is, of course, a function of the complexity of the needs which the statute seeks to accommodate.” 91[47]

Tobias v. Abalos, G.R. No. L-114783, December 8, 1994, 239 SCRA 106.

59

60 BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT) - versus -COMMISSION ON ELECTIONS , G.R. No. 179271, May 2009 CARPIO, J.: The Case Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and Transparency (BANAT) — in a petition for certiorari and mandamus,92[1] assails the Resolution93[2] promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELEC’s resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) — in a petition for certiorari with mandamus and prohibition,94[3] assails NBC Resolution No. 07-6095[4] promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of the canvass of the partylist results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC96[5] (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. The Facts The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.97[6] On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because “[t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats.”98[7] There were no intervenors in BANAT’s petition before the NBC. BANAT filed a memorandum on 19 July 2007. 92 93 94 95 96 97 98

60

61

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against Corruption (CIBAC), Gabriela’s Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizen’s Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below: WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its SubCommittee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections i. Total party-list votes already canvassed/tabulated

15,283,659

ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred)

1,337,032

iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao)

102,430

Maximum Total Party-List Votes

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, 61

62 based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixtytwo (334,462) votes; WHEREAS, the Supreme Court, in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party, organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows: RANK 1

PARTY/ORGANIZATION/ COALITION

VOTES RECEIVED

BUHAY

1,163,21 8

2

BAYAN MUNA

972,73 0

3

CIBAC

760,26 0

4

GABRIELA

610,45 1

5

APEC

538,97 1

6

A TEACHER

476,03 6

7

AKBAYAN

470,87 2

8

ALAGAD

423,07 6

9

BUTIL

405,05 2

10

COOP-NATCO

390,02 9

11

BATAS

386,36 1

12

ANAK PAWIS

376,03 6

13

ARC

338,19 4

14

ABONO

337,04 6

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing 62

63 Sambayanan (BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: 1 Buhay Hayaan Yumabong

BUHAY

2 Bayan Muna

BAYAN MUNA

3 Citizens Battle Against Corruption

CIBAC

4 Gabriela Women’s Party 5 Association Cooperatives

of

GABRIELA

Philippine

Electric

6 Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc.

APEC A TEACHER

7 Akbayan! Citizen’s Action Party

AKBAYAN

8 Alagad

ALAGAD

9 Luzon Farmers Party

BUTIL

10 Cooperative-Natco Network Party

COOP-NATCCO

11 Anak Pawis

ANAKPAWIS

12 Alliance of Rural Concerns

ARC

13 Abono

ABONO This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the partylist results. The

proclamation

of

Bagong 63

64 Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, 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. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.99[8] (Emphasis in the original) Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELEC’s interpretation of the Veterans formula as found in NBC Resolution No. 07-72: WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of partylist votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: Party-List

Projected total number of votes

1

BUHAY

1,178,747

2

BAYAN MUNA

977,476

3

CIBAC

755,964

4

GABRIELA

621,718

5

APEC

622,489

99

64

65 6

A TEACHER

492,369

7

AKBAYAN

462,674

8

ALAGAD

423,190

9

BUTIL

409,298

10

COOP-NATCO

412,920

11

ANAKPAWIS

370,165

12

ARC

375,846

13

ABONO

340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the “first party” in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC; WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the “first party”, the correct formula as expressed in Veterans, is: Number of votes of first party Proportion of votes of first --------------------= party relative to total votes for Total votes for party-list system party-list system wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats: Proportion of votes received by the first party

Additional seats

Equal to or at least 6%

Two (2) additional seats

Equal to or greater than 4% but less than 6%

One (1) additional seat

Less than 4%

No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 --------

= 0.07248 or

7.2% 65

66 16,261,369 which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows: No. of votes of concerned party No. of additional Additional seats for = ------------------x seats allocated to a concerned party No. of votes of first party first party WHEREAS, applying the formula, the results are as follows:

above

Party List

Percentage

Additional Seat

BAYAN MUNA

1.65

1

CIBAC

1.28

1

GABRIELA

1.05

1

APEC

1.05

1

A TEACHER

0.83

0

AKBAYAN

0.78

0

ALAGAD

0.71

0

BUTIL

0.69

0

COOP-NATCO

0.69

0

ANAKPAWIS

0.62

0

ARC

0.63

0

ABONO

0.57

0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit:

Party List

Additional Seats

BUHAY

2

BAYAN MUNA

1

CIBAC

1

GABRIELA

1 66

67 APEC

1 This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, 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. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.100[9]

Acting on BANAT’s petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows: This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads: COMMENTS OBSERVATIONS:

/

Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1.

That the full number --

100

67

68 twenty percent (20%) -- of Party-List representatives as mandated by Section 5, Article VI of the Constitution shall be proclaimed. 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the “ALLOCATION OF PARTY-LIST SEATS, ANNEX “A” of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be followed. 68

69

RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re “In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the PartyList System During the May 14, 2007 National and Local Elections” resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results.” WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory implement this resolution.

Committee

SO ORDERED.101[10] BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.102[11] Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP), 103[12] Anak 101 102 103

69

70 Mindanao (AMIN),104[13] and An Waray.105[14] Per the 106[15] certification by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008: Party-List

No. of Seat(s)

1.1

Buhay

3

1.2

Bayan Muna

2

1.3

CIBAC

2

1.4

Gabriela

2

1.5

APEC

2

1.6

A Teacher

1

1.7

Akbayan

1

1.8

Alagad

1

1.9

Butil

1

1.10

Coop-Natco [sic]

1

1.11

Anak Pawis

1

1.12

ARC

1

1.13

Abono

1

1.14

AGAP

1

1.15

AMIN

1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. Issues BANAT brought the following issues before this Court: 1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and “qualifier” votes prescribed by the same Section 11(b) of RA 7941 constitutional? 4. How shall the representatives be allocated?107[16]

party-list

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: 104 105 106 107

70

71

I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the FirstParty Rule in the allocation of seats to qualified party-list organizations as said rule: A. Violates the principle of proportional representation.

constitutional

B. Violates the provisions of RA 7941 particularly: 1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the “First Party” violates the principle of proportional representation under RA 7941. 2. The use of two formulas in the allocation of additional seats, one for the “First Party” and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. The proportional relationships under the First Party Rule are different from those required under RA 7941; C. Violates the “Four Inviolable Parameters” of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the FirstParty Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.108[17] Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008: 108

71

72

1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? 4. How shall the party-list representative seats be allocated? 5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections?109[18] The Ruling of the Court The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are: First, the twenty percent allocation — the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold — only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are “qualified” to have a seat in the House of Representatives; Third, the three-seat limit — each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one “qualifying” and two additional seats; Fourth, proportional representation— the additional seats which a qualified party is entitled to shall be computed “in proportion to their total number of votes.”110[19] However, because the formula in Veterans has flaws in its mathematical interpretation of the term “proportional representation,” this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. 109 110

72

73

Number of Party-List Representatives: The Formula Mandated by the Constitution Section 5, Article VI of the Constitution provides: Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. — The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx Section 5(1), Article VI of the Constitution states that the “House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law.” The House of Representatives shall be composed of district representatives and party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus: 73

74

Number of seats available to legislative districts

x .20 =

Number of seats available to party-list representatives

.80

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 220

x .20 =

55

.80 After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of “additional seats” under the Party-List System. Veterans produced the First Party Rule,111[20] and Justice Vicente V. Mendoza’s dissent in Veterans presented Germany’s Niemeyer formula112[21] as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide: Section 11. Number of Party-List Representatives. — x x x In determining the allocation of seats for the second vote,113[22] the following procedure shall be observed: (a)The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered 111 112 113

74

75 during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12. Procedure in Allocating Seats for Party-List Representatives. — The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate partylist representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied) In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats. The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows: (a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups 75

76 which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941.114[23] Forty-four (44) party-list seats will be awarded under BANAT’s first interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: (a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system.115[24] BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is “by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats.”116[25] Thirty-four (34) party-list seats will be awarded under BANAT’s second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC’s original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up. 117 [26]

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives. 114 115 116 117

76

77 Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections. Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections.118 [27]

Rank

Party

Votes Rank Garnered

1 BUHAY

1,169,234

2 BAYAN MUNA

Party

Votes Garnered

48 KALAHI

88,868

979,039

49 APOI

79,386

3 CIBAC

755,686

50 BP

78,541

4 GABRIELA

621,171

51 AHONBAYAN

78,424

5 APEC

619,657

52 BIGKIS

77,327

6 A TEACHER

490,379

53 PMAP

75,200

7 AKBAYAN

466,112

54 AKAPIN

74,686

8 ALAGAD

423,149

55 PBA

71,544

9 COOPNATCCO

409,883

56 GRECON

62,220

10 BUTIL

409,160

57 BTM

60,993

11 BATAS

385,810

58 A SMILE

58,717

12 ARC

374,288

59 NELFFI

57,872

13 ANAKPAWIS

370,261

60 AKSA

57,012

14 ABONO

339,990

61 BAGO

55,846

15 AMIN

338,185

62 BANDILA

54,751

16 AGAP

328,724

63 AHON

54,522

17 AN WARAY

321,503

64 ASAHAN MO

51,722

18 YACAP

310,889

65 AGBIAG!

50,837

19 FPJPM

300,923

66 SPI

50,478

20 UNI-MAD

245,382

67 BAHANDI

46,612

21 ABS

235,086

68 ADD

45,624

22 KAKUSA

228,999

69 AMANG

43,062

23 KABATAAN

228,637

70 ABAY PARAK

42,282

24 ABA-AKO

218,818

71 BABAE KA

36,512

25 ALIF

217,822

72 SB

34,835

26 SENIOR CITIZENS

213,058

73 ASAP

34,098

27 AT

197,872

74 PEP

33,938

28 VFP

196,266

75 ABA ILONGGO

33,903

29 ANAD

188,521

76 VENDORS

33,691

30 BANAT

177,028

77 ADD-TRIBAL

32,896

118

77

78 31 ANG KASANGGA

170,531

78 ALMANA

32,255

32 BANTAY

169,801

79 AANGAT KA PILIPINO

29,130

33 ABAKADA

166,747

80 AAPS

26,271

34 1-UTAK

164,980

81 HAPI

25,781

35 TUCP

162,647

82 AAWAS

22,946

36 COCOFED

155,920

83 SM

20,744

37 AGHAM

146,032

84 AG

16,916

38 ANAK

141,817

85 AGING PINOY

16,729

39 ABANSE! PINAY

130,356

86 APO

16,421

40 PM

119,054

87 BIYAYANG BUKID

16,241

41 AVE

110,769

88 ATS

14,161

42 SUARA

110,732

89 UMDJ

9,445

43 ASSALAM

110,440

90 BUKLOD FILIPINA

8,915

44 DIWA

107,021

91 LYPAD

8,471

45 ANC

99,636

92 AA-KASOSYO

8,406

46 SANLAKAS

97,375

93 KASAPI

6,221

47 ABC

90,058

TOTAL

15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that “parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each.” This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 partylist candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates. Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list. 119 [28]

Rank

Party

1 BUHAY

Votes Garnered Votes over Total Votes Guaranteed Garnered for Party-List, Seat in % 1,169,234

7.33%

1

2 BAYAN MUNA

979,039

6.14%

1

3 CIBAC

755,686

4.74%

1

4 GABRIELA

621,171

3.89%

1

5 APEC

619,657

3.88%

1

119

78

79 6 A TEACHER

490,379

3.07%

1

7 AKBAYAN

466,112

2.92%

1

8 ALAGAD

423,149

2.65%

1

9 COOP-NATCCO

409,883

2.57%

1

409,160

2.57%

1

385,810

2.42%

1

12 ARC

374,288

2.35%

1

13 ANAKPAWIS

370,261

2.32%

1

14 ABONO

339,990

2.13%

1

15 AMIN

338,185

2.12%

1

16 AGAP

328,724

2.06%

1

17 AN WARAY

321,503

2.02%

1

10 BUTIL 11 BATAS

120[29]

Total

17

18 YACAP

310,889

1.95%

0

19 FPJPM

300,923

1.89%

0

20 UNI-MAD

245,382

1.54%

0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified partylist candidates, or the two-percenters, are the party-list candidates that are “entitled to one seat each,” or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats. The second clause of Section 11(b) of R.A. No. 7941 provides that “those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes.” This is where petitioners’ and intervenors’ problem with the formula in Veterans lies. Veterans interprets the clause “in proportion to their total number of votes” to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 120

79

80 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of “the broadest possible representation of party, sectoral or group interests in the House of Representatives.”121[30] In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: -

The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.

-

The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.

-

Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated.

-

Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as “additional seats” are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the

121

80

81 remaining available seats corresponds to a party’s share in the remaining available seats. Second, we assign one partylist seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus: Table 3. Distribution of Available Party-List Seats

Rank

Party

Votes (B) Garner Additio Applyi Guarante plus ed nal ng the ed Seat (C), in over Seats three whole Total seat integ Votes cap Votes ers for Garner Party ed List, in (First % (Second Round) Round) (B)

(C)

1

BUHAY

1,169,2 34

7.33%

1

2.79

3

N.A.

2

BAYAN MUNA

979,039

6.14%

1

2.33

3

N.A.

3

CIBAC

755,686

4.74%

1

1.80

2

N.A.

4

GABRIELA

621,171

3.89%

1

1.48

2

N.A.

5

APEC

619,657

3.88%

1

1.48

2

N.A.

6

A Teacher

490,379

3.07%

1

1.17

2

N.A.

7

AKBAYAN

466,112

2.92%

1

1.11

2

N.A.

8

ALAGAD

423,149

2.65%

1

1.01

2

N.A.

COOPNATCCO

409,883

2.57%

1

1

2

N.A.

10

BUTIL

409,160

2.57%

1

1

2

N.A.

11

BATAS

385,810

2.42%

1

1

2

N.A.

12

ARC

374,288

2.35%

1

1

2

N.A.

13

ANAKPAWI S

370,261

2.32%

1

1

2

N.A.

14

ABONO

339,990

2.13%

1

1

2

N.A.

15

AMIN

338,185

2.12%

1

1

2

N.A.

16

AGAP

328,724

2.06%

1

1

2

N.A.

17

AN WARAY

321,503

2.02%

1

1

2

N.A.

18

YACAP

310,889

1.95%

0

1

1

N.A.

19

FPJPM

300,923

1.89%

0

1

1

N.A.

20

UNI-MAD

245,382

1.54%

0

1

1

N.A.

21

ABS

235,086

1.47%

0

1

1

N.A.

122[31

9

(E)

(D)

(A)

]

122

81

82 22

KAKUSA

228,999

1.44%

0

1

1

N.A.

23

KABATAAN

228,637

1.43%

0

1

1

N.A.

24

ABA-AKO

218,818

1.37%

0

1

1

N.A.

25

ALIF

217,822

1.37%

0

1

1

N.A.

26

SENIOR CITIZENS

213,058

1.34%

0

1

1

N.A.

27

AT

197,872

1.24%

0

1

1

N.A.

28

VFP

196,266

1.23%

0

1

1

N.A.

29

ANAD

188,521

1.18%

0

1

1

N.A.

30

BANAT

177,028

1.11%

0

1

1

N.A.

31

ANG 170,531 KASANGGA

1.07%

0

1

1

N.A.

32

BANTAY

169,801

1.06%

0

1

1

N.A.

33

ABAKADA

166,747

1.05%

0

1

1

N.A.

34

1-UTAK

164,980

1.03%

0

1

1

N.A.

35

TUCP

162,647

1.02%

0

1

1

N.A.

36

COCOFED

155,920

0.98%

0

1

1

N.A.

Total

17

55

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available partylist seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). Participation of Major Political Parties in Party-List Elections The Constitutional Commission adopted a multiparty system that allowed all political parties to participate in the party-list elections. The deliberations of the Constitutional Commission clearly bear this out, thus: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. x x x We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. x x x. xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political 82

83 parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution. MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. Tañada would not qualify.

No, Senator

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? 83

84

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang “reserve.” Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. xxxx MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system 84

85 that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. x x x 123[32] (Emphasis supplied) R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads: Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. 123

85

86

It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 1922, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups.124 [33] In defining a “party” that participates in party-list elections as either “a political party or a sectoral party,” R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. 124

86

87

The qualifications of party-list nominees prescribed in Section 9 of R.A. No. 7941:

are

Qualifications of Party-List Nominees. — No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the elections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s nominee “wallow in poverty, destitution and infirmity”125[34] as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors,126[35] that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: “The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x.” The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing 125 126

87

88 major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. POWER OF THE COMELEC TO RESOLVE LEADERSHIP DISPUTES OF PARTY-LIST DR. HANS CHRISTIAN M. SENERIS VS. COMELEC, G.R. No. 178678, April 16, 2009 VELASCO, JR., J.: The Undisputed Facts In 1999, private respondent Robles was elected president and chairperson of BUHAY, a party-list group duly registered with COMELEC.127[3] The constitution of BUHAY provides for a threeyear term for all its party officers, without re-election.128[4] BUHAY participated in the 2001 and 2004 elections, with Robles as its president. All the required Manifestations of Desire to Participate in the said electoral exercises, including the Certificates of Nomination of representatives, carried the signature of Robles as president of BUHAY.129[5] On January 26, 2007, in connection with the May 2007 elections, BUHAY again filed a Manifestation of its Desire to Participate in the Party-List System of Representation.130[6] As in the past two elections, the manifestation to participate bore the signature of Robles as BUHAY president. On March 29, 2007, Robles signed and filed a Certificate of Nomination of BUHAY’s nominees for the 2007 elections containing the following names: (i) Rene M. Velarde, (ii) Ma. Carissa Coscolluela, (iii) William Irwin C. Tieng, (iv) Melchor R. Monsod, and (v) Teresita B. Villarama. Earlier, however, or on March 27, 2007, petitioner Hans Christian Señeres, holding himself up as acting president and secretary-general of BUHAY, also filed a Certificate of Nomination with the COMELEC, nominating: (i) himself, (ii) Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv) Victor Pablo C. Trinidad, and (v) Eduardo C. Solangon, Jr.131[7] Consequently, on April 17, 2007, Señeres filed with the COMELEC a Petition to Deny Due Course to Certificates of 127 128 129 130 131

88

89 Nomination.132[8] In it, petitioner Señeres alleged that he was the acting president and secretary-general of BUHAY, having assumed that position since August 17, 2004 when Robles vacated the position. Pushing the point, Señeres would claim that the nominations made by Robles were, for lack of authority, null and void owing to the expiration of the latter’s term as party president. Furthermore, Señeres asserted that Robles was, under the Constitution,133[9] disqualified from being an officer of any political party, the latter being the Acting Administrator of the Light Railway Transport Authority (LRTA), a government-controlled corporation. Robles, so Señeres would charge, was into a partisan political activity which civil service members, like the former, were enjoined from engaging in. On May 10, 2007, the National Council of BUHAY adopted a resolution134[10] expelling Señeres as party member for his act of submitting a Certificate of Nomination for the party. The resolution reads in part: WHEREAS, Hans Christian M. Señeres, without authority from the National Council, caused the filing of his Certificate of Nomination with the Comelec last 27 March 2007. WHEREAS, Hans Christian M. Señeres, again without authority from the National Council, listed in his Certificate of Nomination names of persons who are not even members of the Buhay party. WHEREAS, Hans Christian M. Señeres, knowing fully well that the National Council had previously approved the following as its official nominees, to wit x x x to the 2007 Party-List elections; and that Mr. Melquiades A. Robles was authorized to sign and submit the party’s Certificate of Nomination with the Comelec; and, with evident premeditation to put the party to public ridicule and with scheming intention to create confusion, still proceeded with the filing of his unauthorized certificate of nomination even nomination persons who are not members of Buhay. WHEREAS, Hans Christian M. Señeres, in view of the foregoing, underwent Party Discipline process pursuant to Article VII of the Constitution and ByLaws of the Party. xxxx WHEREAS, after a careful examination of the [evidence] on his case, the National Council found Hans Christian M. Señeres to have committed acts in violation of the constitution and by-laws of the party and decided to expel him as a member of the party. NOW THEREFORE, be it RESOLVED as it is hereby RESOLVED that the National Council has decided to expel Hans M. Señeres as a member of the party effective close of business hour of 10 May 2007. 132 133 134

89

90

BE IT RESOLVED FURTHER, that all rights and privileges pertaining to the membership of Hans M. Señeres with the party are consequently cancelled. BE IT RESOLVED FURTHER, that the President and Chairman of the National Council of Buhay, Mr. Melquiades A. Robles, is hereby authorized to cause the necessary filing of whatever documents/letters before the House of Representatives and/or to any other entity/agency/person to remove/drop Mr. Señeres’ name in the roll of members in the said lower house. 135[11] Later developments saw Robles filing a petition praying for the recognition of Jose D. Villanueva as the new representative of BUHAY in the House of Representatives for the remaining term until June 30, 2007.136[12] Attached to the petition was a copy of the expelling resolution adverted to. Additionally, Robles also filed on the same day an “Urgent Motion to Declare Null and Void the Certificate of Nomination and Certificates of Acceptance filed by Hans Christian M. Señeres, Hermenegildo Dumlao, Antonio R. Bautista, Victor Pablo Trinidad and Eduardo Solangon, Jr.”137[13] On July 9 and July 18, 2007, respectively, the COMELEC issued two resolutions proclaiming BUHAY as a winning party-list organization for the May 2007 elections entitled to three (3) House seats.138[14] This was followed by the issuance on July 19, 2007 by the en banc COMELEC of Resolution E.M. No. 07-043 recognizing and declaring Robles as the president of BUHAY and, as such, was the one “duly authorized to sign documents in behalf of the party particularly the Manifestation to participate in the party-list system of representation and the Certification of Nomination of its nominees.”139[15] Explaining its action, COMELEC stated that since no party election was held to replace Robles as party president, then he was holding the position in a hold-over capacity.140[16] The COMELEC disposed of the partisan political activity issue with the terse observation that Señeres’ arguments on the applicability to Robles of the prohibition on partisan political activity were unconvincing.141[17] The dispositive portion of the COMELEC Resolution reads: WHEREFORE, premises considered, this Commission (En Banc) hereby recognizes Melquiades A. Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and to act for and in its behalf pursuant to its Constitution and By-Laws. SO ORDERED.142[18] 135 136 137 138 139 140 141 142

90

91 On July 20, 2007, the first three (3) listed nominees of BUHAY for the May 2007 elections, as per the Certificate of Nomination filed by Robles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and William Irwin C. Tieng, took their oaths of office as BUHAY party-list representatives in the current Congress.143[19] Accordingly, on September 3, 2007, the COMELEC, sitting as National Board of Canvassers, issued a Certificate of Proclamation to BUHAY and its nominees as representatives to the House of Representatives.144[20] Aggrieved, petitioner filed the instant petition. The Issue Whether or not the COMELEC acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its challenged Resolution dated June 19, 2007, which declared respondent Robles as the duly authorized representative of BUHAY, and there is no appeal or any other plain, speedy or adequate remedy in the ordinary course of law except the instant petition. HELD: The petition should be dismissed for lack of merit. Petition for Certiorari Is an Improper Remedy A crucial matter in this recourse is whether the petition for certiorari filed by Señeres is the proper remedy. A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the proceeding. 145[21] It is the “proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.”146[22] For certiorari to prosper, however, there must be a showing that the COMELEC acted with grave abuse of discretion and that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. In the present case, a plain, speedy and adequate remedy in the ordinary course of law was available to Señeres. The 1987 Constitution cannot be more explicit in this regard. Its Article VI, Section 17 states: 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. x x x

143 144 145 146

91

92 This constitutional provision is reiterated in Rule 14 of the 1991 Revised Rules of the Electoral Tribunal of the House of Representatives, to wit: RULE 14. Jurisdiction.—The Tribunal shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives. In Lazatin v. House Electoral Tribunal, the Court elucidated on the import of the word “sole” in Art. VI, Sec. 17 of the Constitution, thus: The use of the word ‘sole’ emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as ‘intended to be as complete and unimpaired as if it had remained originally in the legislature.’ Earlier, this grant of power to the legislature was characterized by Justice Malcolm as ‘full, clear and complete.’ Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution.”147[23] Then came Rasul v. COMELEC and Aquino-Oreta, in which the Court again stressed that “the word ‘sole’ in Sec. 17, Art. VI of the 1987 Constitution and Sec. 250 of the Omnibus Election Code underscore the exclusivity of the Tribunal’s jurisdiction over election contests relating to its members.”148[24] The House of Representatives Electoral Tribunal’s (HRET’s) sole and exclusive jurisdiction over contests relative to the election, returns and qualifications of the members of the House of Representatives “begins only after a candidate has become a member of the House of Representatives.” 149[25] Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELEC’s jurisdiction over elections relating to the election, returns, and qualifications ends, and the HRET’s own jurisdiction begins.150[26] It is undisputed that the COMELEC, sitting as National Board of Canvassers, proclaimed BUHAY as a winning party-list organization for the May 14, 2007 elections, entitled to three (3) seats in the House of Representatives.151[27] The proclamation came in the form of two Resolutions dated July 9, 2007 and July 18, 2007,152[28] respectively. Said resolutions are official proclamations of COMELEC considering it is BUHAY that ran for election as party-list organization and not the BUHAY nominees. The following day, on July 19, 2007, the COMELEC issued the assailed resolution declaring “Melquiades A. Robles as the duly authorized representative of Buhay Hayaan Yumabong (Buhay) and 147 148 149 150 151 152

92

93 to act in its behalf pursuant to its Constitution and By-Laws.” COMELEC affirmed that his Certificate of Nomination was a valid one as it ruled that “Robles is the President of Buhay Party-List and therefore duly authorized to sign documents in behalf of the party particularly the Manifestation to participate in the pary-list system of representation and the Certificate of Nomination of its nominees.”153[29] The September 3, 2007 proclamation merely confirmed the challenged July 19, 2007 Resolution. The July 19, 2007 Resolution coupled with the July 9, 2007 and July 18, 2007 proclamations vested the Robles nominees the right to represent BUHAY as its sectoral representatives. Consequently, the first three (3) nominees in the Certificate of Nomination submitted by Robles then took their oaths of office before the Chief Justice on July 20, 2007 and have since then exercised their duties and functions as BUHAY Party-List representatives in the current Congress. Without a doubt, at the time Señeres filed this petition before this Court on July 23, 2007, the right of the nominees as party-list representatives had been recognized and declared in the July 19, 2007 Resolution and the nominees had taken their oath and already assumed their offices in the House of Representatives. As such, the proper recourse would have been to file a petition for quo warranto before the HRET within ten (10) days from receipt of the July 19, 2007 Resolution and not a petition for certiorari before this Court. 154 [30]

Since Señeres failed to file a petition for quo warranto before the HRET within 10 days from receipt of the July 19, 2007 Resolution declaring the validity of Robles’ Certificate of Nomination, said Resolution of the COMELEC has already become final and executory. Thus, this petition has now become moot and can be dismissed outright. And even if we entertain the instant special civil action, still, petitioner’s postulations are bereft of merit. Act of Nominating Is Not Partisan Political Activity Petitioner Señeres contends that Robles, acting as BUHAY President and nominating officer, as well as being the Administrator of the LRTA, was engaging in electioneering or partisan political campaign. He bases his argument on the Constitution, which prohibits any officer or employee in the civil service from engaging, directly or indirectly, in any electioneering or partisan political campaign.155[31] He also cites Sec. 4 of the Civil Service Law which provides that “no officer or employee in the Civil Service x x x shall engage in any partisan political activity.” Lastly, he mentions Sec. 26(i) of the Omnibus Election Code which makes it “an election offense for any officer in the civil service to directly or indirectly x x x engage in any partisan political activity.” This contention lacks basis and is far from being persuasive. The terms “electioneering” and “partisan political activity” have well-established meanings in the Omnibus Election Code, to wit: Section 79. x x x (b) The term ‘election campaign’ or ‘partisan political activity’ refers to an act designed to promote the 153 154 155

93

94 election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, agreement, or coalition of parties shall not be considered as election campaign or partisan election activity. Public expression of opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forth coming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. (Emphasis supplied.) Guided by the above perspective, Robles’ act of submitting a nomination list for BUHAY cannot, without more, be considered electioneering or partisan political activity within the context of the Election Code. First of all, petitioner did not aver that Robles committed any of the five (5) acts defined in the aforequoted Sec. 79(b) of the Code, let alone adduce proof to show the fact of commission. Second, even if Robles performed any of the previously mentioned acts, Sec. 79 of the Code is nonetheless unequivocal that if the same is done only for the “purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, agreement, or coalition of parties,” it is not considered as a prohibited electioneering or partisan election activity. From this provision, one can conclude that as long as the acts embraced under Sec. 79 pertain to or are in connection with the nomination of a candidate by a party or organization, then such are treated as internal matters and cannot be considered as electioneering or partisan political activity. The twin acts of signing and filing a Certificate of Nomination are purely internal processes of the party or organization and are not designed to enable or ensure 94

95 the victory of the candidate in the elections. The act of Robles of submitting the certificate nominating Velarde and others was merely in compliance with the COMELEC requirements for nomination of party-list representatives and, hence, cannot be treated as electioneering or partisan political activity proscribed under by Sec. 2(4) of Art. IX(B) of the Constitution for civil servants. Moreover, despite the fact that Robles is a nominating officer, as well as Chief of the LRTA, petitioner was unable to cite any legal provision that prohibits his concurrent positions of LRTA President and acting president of a party-list organization or that bars him from nominating. Last but not least, the nomination of Velarde, Coscolluela, Tieng, Monsod, and Villarama to the 2007 party-list elections was, in the final analysis, an act of the National Council of BUHAY. Robles’ role in the nominating process was limited to signing, on behalf of BUHAY, and submitting the party’s Certificate of Nomination to the COMELEC.156[32] The act of nominating BUHAY’s representatives was veritably a direct and official act of the National Council of BUHAY and not Robles’. Be that as it may, it is irrelevant who among BUHAY’s officials signs the Certificate of Nomination, as long as the signatory was so authorized by BUHAY. The alleged disqualification of Robles as nominating officer is indeed a non-issue and does not affect the act of the National Council of nominating Velarde and others. Hence, the Certificate of Nomination, albeit signed by Robles, is still the product of a valid and legal act of the National Council of BUHAY. Robles’ connection with LRTA could not really be considered as a factor invalidating the nomination process. “Hold-Over” Principle Applies Petitioner Señeres further maintains that at the time the Certificate of Nomination was submitted, Robles’ term as President of BUHAY had already expired, thus effectively nullifying the Certificate of Nomination and the nomination process. Again, petitioner’s contention is untenable. As a general rule, officers and directors of a corporation hold over after the expiration of their terms until such time as their successors are elected or appointed.157[33] Sec. 23 of the Corporation Code contains a provision to this effect, thus: Section 23. The board of directors or trustees.— Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year until their successors are elected and qualified. The holdover doctrine has, to be sure, a purpose which is at once legal as it is practical. It accords validity to what would otherwise be deemed as dubious corporate acts and gives continuity to a corporate enterprise in its relation to outsiders.158[34] This is the analogical situation obtaining in the present case. The voting 156 157 158

95

96 members of BUHAY duly elected Robles as party President in October 1999. And although his regular term as such President expired in October 2002,159[35] no election was held to replace him and the other original set of officers.160[36] Further, the constitution and by-laws of BUHAY do not expressly or impliedly prohibit a hold-over situation. As such, since no successor was ever elected or qualified, Robles remained the President of BUHAY in a “holdover” capacity. Authorities are almost unanimous that one who continues with the discharge of the functions of an office after the expiration of his or her legal term––no successor having, in the meantime, been appointed or chosen––is commonly regarded as a de facto officer, even where no provision is made by law for his holding over and there is nothing to indicate the contrary.161[37] By fiction of law, the acts of such de facto officer are considered valid and effective.162[38] So it must be for the acts of Robles while serving as a holdover Buhay President. Among these acts was the submission of the nomination certificate for the May 14, 2007 elections. As a final consideration, it bears to state that petitioner is estopped from questioning the authority of Robles as President of BUHAY. As a principle of equity rooted on natural justice, the bar of estoppel precludes a person from going back on his own acts and representations to the prejudice of another whom he has led to rely upon them.163[39] Again, it cannot be denied that Robles, as BUHAY President, signed all manifestations of the party’s desire to participate in the 2001 and 2004 elections, as well as all Certificates of Nomination. 164 [40] In fact, the corresponding certificate for the 2004 elections included petitioner as one of the nominees. During this time, Robles’ term as President had already expired, and yet, petitioner never questioned Robles’ authority to sign the Certificate of Nomination. As a matter of fact, petitioner even benefited from the nomination, because he earned a seat in the House of Representatives as a result of the party’s success. 165[41] Clearly, petitioner cannot now be heard to argue that Robles’ term as president of BUHAY has long since expired, and that his act of submitting the Certificate of Nomination and the manifestation to participate in the 2007 elections is null and void. He is already precluded from doing so. WHEREFORE, the petition is DISMISSED. Resolution E.M. No. 07-043 of the COMELEC dated July 19, 2007 is AFFIRMED. No costs. 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 25 years of age, 159 160 161 162 163 164 165

96

97 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 1 year immediately preceding the day of the election. Read: ANTONIO BENGSON III VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO CRUZ, 357 SCRA 545 Rep. Act No. 2630 “Sec. 1. Any person who had lost his Philippine Citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United states, acquired US citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC OF THE PHILIPPINES AND REGISTERING THE SAME WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE HE RESIDES OR LAST RESIDED IN THE PHILIPPINES. The said Oath of allegiance shall contain a renunciation of any other citizenship.” 1. Section 2, Article IV, 1987 Philippine Constitution “Section 2. Natural born citizens are those citizens of the Philippines from birth without having to perform an act to acquire or perfect their Philippine citizenship. Those who elect Philippine Citizenship in accordance with par. 3* , Section 1 shall be deemed natural born citizens.” OCAMPO VS. HOUSE ELECTORAL TRIBUNAL and MARIO CRESPO, a.k.a. MARK JIMENEZ, June 15, 2004 Who takes the place of the winning candidate **

“Those born before January 17, 1973, of Filipino mothers who elect Philippine citizenship upon reaching the age of majority.”

97

98 as a Member of the House of Representatives who was disqualified after he was proclaimed as such? Facts: The petitioner and Mark Jimenez were candidates for Congressman of the 6th District of manila for the May 14, 2001 elections. Mark Jimenez won over the petitioner with 32,097 votes as against petitioner’s 31,329 votes. Petitioner filed an electoral protest before the HRET based on the following grounds: 1] misreading of ballots; 2] falsification of election returns; 3]substitution of election returns; 4] use of marked, spurious fake and stray ballots; and 5] presence of ballots written by one or two persons. On March 6, 2003, the HRET issued its Decision in the case of ABANTE, ET AL. VS. MARI CRESPO, a.k.a. MARK JIMENEZ, et al., declaring Mark Jimenez “ ineligible for the Office of Representative of Sixth District of Manila for lack of residence in the District. Mark Jimenez filed a Motion for Reconsideration which was denied. As a result of said disqualification of Jimenez, the petitioner claimed that all the votes cast for the former should not be counted and since he garnered the second highest number of votes, he should be declared winner in the May 14, 2001 elections and be proclaimed the duly elected Congressman of the 6th District of manila. Issues: 1. Are the votes of Mark Jimenez stray votes and should not be counted? 2. Whether the petitioner as second places should be proclaimed winner since the winner was disqualified? Held: 1. There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered “stray”. This final judgment must be rendered BEFORE THE ELECTION. This was the ruling in the case of CODILLA VS. DE VENECIA. Hence, when a candidate has not been disqualified by final judgment during the election day he was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. The reason behind this is that the people voted for him bona fide and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. 2. The subsequent disqualification of a candidate who obtained the highest number of votes does not entitle the second placer to be declared the winner. The said principle was laid down as early as 1912 and reiterated in the cases of LABO VS. COMELEC, ABELLA VS. COMELEC and DOMINO VS. COMELEC. 98

99 (Note, however, that if the disqualificatio n became FINAL before election day but still, the voters elected him, said votes are considered stray votes and the “second placer” will be declared the winner) Section 7. The members of the House of Representatives shall be elected for a term of 3 years which shall begin, unless otherwise provided by law, at noon on the 30 th day of June next following their election. No member of the House of Representative shall serve for a period of more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. a. On the manner of nomination and appointment of representatives to the Hose of Representatives.

Sectoral

Read: 1. Exec. Order No. 198, June 18, 1987 2.. DELES VS. COMMISSION ON APPOINTMENTS, September 4, 1989 b. On gerrymandering Read: CENIZA vs. COMELEC, 95 SCRA 763 4. Section 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of representatives thus elected shall serve only the unexpired term. 99

100 Read: 1. LOZADA vs. COMELEC, 120 SCRA 337 COMELEC cannot call a special election (for the legislative districts whose Congressmen resigned or died while in office) without a law passed by Congress appropriating funds for the said purpose. 2. RA 6645-RE: Filling up of Congress Vacancy, December 28, 1987 5. Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the members of the Senate and the House of representatives approving such increase. a. How much is the present salary of the members of Congress? P204,000.00 [P17,000.00 per month] as per Section 17, Art. XVIII of the Constitution. The President’s salary is P300,000.00 per annum, while the VP, Speaker, Senate President and Chief Justice is P240,000.00 per annum. The Chairman of the Constitutional Commissions salary is P204,000.00 and the members, P180,000.00 per annum. b. Read: 1. Section 17, Article 18) (P300,000.00 for the President; P240,000.00 for VP, Senate President; Speaker; Chief Justice; P204,000.00 for Senators, Representatives, Chairmen of CC; P180,000.00 for members of the Constitutional Commissions) 2. PHILCONSA VS. JIMENEZ, 15 SCRA 479; 3. LIGOT VS. MATHAY, 56 SCRA 823 6. Section 11. A Senator or Member of the House of representatives shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any debate in the Congress or in any committee thereof. a. Privilege from arrest Read: SCRA 22

Martinez vs. Morfe, MARTINEZ VS. MORFE, 44

b. Freedom of Speech and debate Read: 1) OSMENA VS. PENDATUN, 109 Phil. 863 2) JIMENEZ VS. CABANGBANG, 17 SCRA 876 7. Section 12. All members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential 100

101 conflict of interest that may arise from the filing of a proposed legislation of which they are authors. 8. Section 13. No Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, including government-owned and controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. Read: 1) ADAZA vs. PACANA, 135 SCRA 431 After taking his oath as a member of the Batasang Pambansa (Congress), he is deemed to have resigned his position as Governor of Misamis Oriental because as a legislator, he is not allowed to hold any other office in the government. 2) PUNZALAN vs. MENDOZA, 140 SCRA 153 A provincial governor who took his oath as a member of the Batasang Pambansa as “appointed member” for being a member of the Cabinet is allowed to return to his former position as Governor if he resigns from the Batasan. This is so because he was just an “appointed” member as distinguished from the Adaza Case. (Note: It appears that an appointed member of the Batasan is placed in a better position than the elected members) 3) Compare with Section 10, Art. VIII of the 1973 Constitution 9. Section 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial bodies and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or any franchise or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any government owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. Read: 1) VILLEGAS vs. LEGASPI, 113 SCRA 39 2) PUYAT vs. DE GUZMAN, 113 SCRA 31 What could not be done directly could not likewise be done indirectly. So a member of Congress who is a stockholder of the corporation involved in a case is not 101

102 allowed to appear under the guise that he is appearing as such, not as counsel for the corporation. 10. Sections 15. The Congress shall convene once every year on the 4th Monday of July for its regular season, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until 30 days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time. Section 16. [1] The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective members. Each house shall choose such other officers as it may deem necessary. [2] A majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner, and under such penalties, as such House may provide. [3] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall mot exceed sixty days. NOTE: In the cases of: 1. MIRIAM

DEFENSOR SANTIAGO VS. SANDIGANBAYAN; and 2. REP. CEFERINO PAREDES VS. SANDIGANBAYAN, -the Supreme Court held that a member of Congress may also be suspended by the Sandiganbayan in accordance with Section 13 of RA 3019. This preventive suspension applies to all public officials, including members of Congress. Otherwise, the same will be considered class legislation (there will be violation of the equal protection clause) if Senators and Congressmen who commit the same is exempt from the preventive suspension imposed therein. But the Order of Suspension from the court shall be given to the Speaker or Senate President for his/her implementation. Other than the foregoing, a member of Congress can be suspended by the Congress itself. [4] Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of 102

103 one fifth of the members present, be entered in the journal. Each House shall also keep a record of its proceedings. [Neither House during the sessions of the Congress, shall without the consent of the other, adjourn for more than three days, nor to any place than that which the 2 Houses shall be sitting. Read: 1) AVELINO vs. CUENCO, 83 Phil. 17, Read also the motion for reconsideration dated March 14, 1949 2) Disciplinary measures on erring members Read: OSMENA vs. PENDATUN, 109 Phil. 863 3) Dual purpose for keeping a journal 4) Journal entry and enrolled bill theories; which is conclusive over the other? Read: U.S. vs. PONS, 34 Phil. 729 The journal prevails over extraneous evidence like accounts of newspaper journalists and reporters as to what the proceedings all about. b. MABANAG vs. LOPEZ VITO, 78 Phil. 1 CASCO PHIL. VS. GIMENEZ, 7 SCRA 347 The enrolled bill prevails over the journal. If the enrolled bill provides that it is urea formaldehyde is the one exempt from tax, and not urea and formaldehyde which appears in the journal which was really approved, the former prevails and only CURATIVE LEGISLATION COULD CHANGE THE SAME, NOT JUDICIAL LEGISLATION. d. MORALES vs. SUBIDO, 27 Phil. 131 e. ASTORGA vs. VILLEGAS, 56 SCRA 714 (NOTE: The journal prevails over the enrolled bill on all matters required to be entered in the journals, like yeas and nays on the final reading of a bill or on any question at the request of 1/5 of the members present. ) 5) Differentiate a "regular" from a "special" session. 11. Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all election contests relating to election, returns, and qualifications of their respective members. Each Electoral tribunal shall be composed of 9 members, 3 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 House of Representatives as the case may be, who shall be chosen on the basis of 103

104 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. Jurisdiction of the Electoral Tribunals viz-a-viz the COMELEC to determine the qualifications of Members of Congress before and after proclamation. JOCELYN SY LIMKAICHONG VS. COMELEC, G.R. No. 178831-32, April 1, 2009 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. At the core of these contentious consolidated petitions are: (1) the Joint Resolution166[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 Resolution167[2] dated June 29, 2007, affirming her disqualification; and (3) the COMELEC En Banc Resolution168[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). The facts are uncontroverted. On March 26, 2007, Limkaichong filed with the COMELEC her Certificate of Candidacy169[4] (COC) for the position of Representative of the First District of Negros Oriental. 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) A07-006,170[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. A07-007.171[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. In her separate Answers172[7] to the petitions, Limkaichong claimed that she is a natural-born Filipino since she was born to a naturalized Filipino father and a natural-born Filipino mother, who had reacquired 166[1]

Rollo (G.R. Nos. 178831-32), pp. 24-36. Id. at 53-66. 168[3] Id. at 181-183. 169[4] Id. at 74. 170[5] Id. at 75-77. 171[6] Id. at 82-87. 172[7] Id. at 100-144. 167[2]

104

105 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, ] she averred that a petition filed before an election, questioning the qualification of a candidate, should be based on Section 78 in relation to Section 74 of the Omnibus Election Code (OEC and not under Sections 68 and 74 thereof in relation to Section 1 Rule 25 of the COMELEC Rules of Procedure and Section 5 paragraph C (3.a) of COMELEC Resolution No. 7800. 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. The COMELEC consolidated the two (2) petitions and re-docketed them as SPA Nos. 07-247173[17] and 07-248,174[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 votes175[19] or by a margin of 7,746 votes over another congressional candidate, Olivia Paras176[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.177[21] In a Joint Resolution178[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. 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.179[24] The following day, or on May 18, 2007, the COMELEC En Banc issued Resolution No. 8062180[25] adopting the policy-guidelines of not 173[17]

Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong, Respondent. 174[18] Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong, Respondent. 175[19] Rollo (G.R. Nos. 178831-32), p. 152. 176[20] Rollo (G.R. Nos. 179132-33), p. 103. 177[21] Id. at 135-141. 178[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. 179[24] Rollo (G.R. Nos. 179132-33), pp. 168-169, 201. 180[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: The Commission, in upholding the sovereign will of the people and in the interest of justice and fair

105

106 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.181[26] 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. 8062.182[27] On same date, Villando, one of the petitioners in the disqualification cases, filed an Urgent Manifestation Clarifying COMELEC Resolution No. 8062 with Motion,183[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.184[29] Thereafter, or on May 30, 2007, Paras filed with the COMELEC a Petition to Nullify and/or Annul the Proclamation of Jocelyn SyLimkaichong as First District Representative of Negros Oriental in relation to the May 17, 2007 Joint Resolution of the COMELEC Second Division,185[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,186[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: 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 play, RESOLVED as it hereby RESOLVES, to adopt the following policyguidelines 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.

181[26]

Rollo (G.R. No. 179132-33), pp. 37-52 Id. at 147-149. 183[28] Rollo (G.R. Nos. 179132-33), pp. 158-162. 184[29] Rollo (G.R. Nos. 178831-32), p. 152. 185[30] Rollo (G.R. No. 179132-33), pp. 165-192. 186[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.). 106 182[27]

107 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.187[32] Meanwhile, in a Resolution188[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. 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.189[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, 190 [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. 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.191[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.192[38]

187[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.) 188[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. 189[35] Id. at 159-163. 190[36]

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. 191[37]

Rollo (G.R. Nos. 179132-33), pp. 213-214. Id. at 238-256.

192[38]

107

108 Despite Limkaichong’s repeated pleas for the resolution of her manifestation and motion for clarification,193[39] the COMELEC did not resolve the same. Hence, on August 1, 2007, she filed with this Court a Petition for Certiorari194[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. On August 16, 2007, the COMELEC En Banc ruled on Limkaichong’s manifestation and motion for clarification,195[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. 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 196[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.197[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 Injunction198[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

193[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. 194[40]

Id. at 3-20. Id. at 181-183. 196[42] Rollo (G.R. No. 179120), pp. 3-21. 197[43] Id. at 19-20. 198[44] Rollo (G.R. Nos. 179132-33), pp. 3-70. 195[41]

108

109 disqualification and for the holding of special elections to fill the vacancy created by such.199[45] On even date, the COMELEC Second Division promulgated a Resolution200[46] denying Villando's motion to suspend the proclamation of Limkaichong, which denial was affirmed by the COMELEC En Banc in a Resolution201[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 Order202[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 Resolution203[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. 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: 3

Whether the proclamation of Limkaichong by the Provincial Board of Canvassers of Negros Oriental is valid;

4

Whether said proclamation divested the Commission on Elections of jurisdiction to resolve the issue of Limkaichong's citizenship;

5

Whether the House of Representatives Electoral Tribunal shall assume jurisdiction, in lieu of the COMELEC, over the issue of Limkaichong's citizenship;

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 naturalborn citizen; 5. Whether the COMELEC disqualification of Limkaichong is final and executory; and, 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: 199[45]

Id. at 69-70. Rollo (G.R. Nos. 178831-32), pp. 468-470. 201[47] Id. at 471-481. 202[48] Rollo (G.R. Nos. 179240-41), pp. 3-28. 203[49] Supra note 41. 200[46]

109

110 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. 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.204[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.

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.205[51]

204[50]

COMELEC Rules of Procedure, Rule 19, Sec. 2. 442 Phil. 139 (2002).

205[51]

110

111 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. 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 rule-making 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 policyguideline. It is also an administrative interpretation of the two (2) provisions of the 1987 Constitution, namely: (i) Section 17, 206[52] Article VI (ii); Section 2(2),207[53] Article IX-C; Section 6208[54] of R.A. 6646; and

206[52]

Section 17, Article VI, 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 partylist system represented therein. The senior justice in the Electoral Tribunal shall be its Chairman. 207[53]

Section 2(2), Article IX-C, 1987 Constitution provides: Sec. 2. The Commission on Elections shall exercise the following powers and functions: xxxx (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. 208[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.

111

112 Sections 241209[55] and 243,210[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.211[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.212[58] 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. 213[59] In adopting such policyguidelines 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. The Court has held in the case of Planas v. COMELEC,214[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. 209[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. 210[56]

Section 243 of the OEC provides: SEC. 243. Issues that may be raised in preproclamation controversy. - The following shall be proper issues that may be raised in preproclamation controversy: (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. 211[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). 212[58] Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986). 213[59]

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. 214[60]

G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537.

112

113 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.

113

114 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.215[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 250 216[62] of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members.217[63] 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.

215[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). 216[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. 217[63] Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul v. Commission on Elections, 371 Phil. 760, 766 (1999). 114

115 Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as amended, which states: 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. 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. 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.

115

116 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. 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.218[64] The Court has shed light on this in the case of Vinzons-Chato,219[65] to the effect that: 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: x x x [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. 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 218[64]

Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338. 219[65] Supra note 61, at 180. 116

117 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. 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 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,220[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. 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. In Frivaldo v. Commission on Elections,221[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 220[66]

G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44. G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied)

221[67]

117

118 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? x x x 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. 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; 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 [now Bureau of Private Schools] 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 [now Office of the President] and the Bureau of Justice [now Office of the Solicitor General]; 5. If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the constitutional or legal 118

119 provisions requiring Philippine citizenship as a requisite for the exercise, use or enjoyment of a right, franchise or privilege. (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. 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, 222[69] the only remaining record of the naturalization proceedings,223[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. 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. – x x x (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.

222[69]

Rollo p. 97. Id. at 172 and 175.

223[70]

119

120 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 2,224[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,225[72] thus: 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. 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 224[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. 225[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).

120

121 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. 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. 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 Venecia226[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. 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.

226[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. 121

122 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. 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.227[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. Read: 1) LAZATIN VS. COMELEC, G.R. No. 80007, January 25, 1988 2) FIRDAUSI ABBAS, ET AL. VS. THE SENATE ELECTORAL TRIBUNAL, October 27, 1988 3)ENRILE VS. COMELEC & SANCHEZ; ENRILE VS. COMELEC & RAZUL AND SANCHEZ VS. COMELEC, Aug. 12, 1987, 153 SCRA 57 4. BONDOC VS. HRET, supra 11. Section 18. There shall be a Commission on Appointments consisting of the Senate President, as ex-oficio chairman, 12 senators and 12 members of 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 chairman of the commission shall not vote, except in case of a tie. The commission shall act on all appointments submitted to it within 30 session days of the Congress from their submission. The Commission shall rule by a majority of all the members. Read: 1. RAUL DAZA VS. LUIS SINGSON, December 21, 1989

227[74]

See Codilla v. De Venecia, 442 Phil. 139 (2002). 122

123 If the changes (which are permanent) in the political party affiliations of the members of Congress is substantial so as to dramatically decrease the membership of one party while reducing the other, the number of representatives of the different parties in the Commission on Appointments may also be changed in proportion to their actual memberships. (NOTE: In Cunanan vs. Tan, the membership of the Senators was only “temporary” so as not to result in the change of membership in the Commission on Appointments) 2. GUINGONA VS. GONZALES, October 20, 1992 Since 12 Senators are members of the Commission on Appointments, in addition to the Senate President as the head thereof, every two (2) Senators are entitled to one (1) representative in the Commission. Parties, however, are not allowed to “round off” their members, I.e., 7 Senators are entitled to 3 representatives in the Commission on Appointments, not 4 since 7/2 is only 3.5. Further, there is nothing in the Constitution which requires that there must be 24 members of the Commission. If the different parties do not coalesce, then the possibility that the total number of Senators in the CA is less than 12 is indeed a reality. (Example: Lakas---13 Senators; LDP---11 Senators. In this case, Lakas is entitled to 6 members in the CA (13/2= 6.5) while LBP would have 5 members (11/2= 5.5) 3. GUINGONA S. GONZALES, March 1, 1993 (Resolution of the Motion for Reconsideration of the October 20, 1992 Decision) To be discussed later together with Sec. 16, Art. VII. 12-a. Section 19. The electoral tribunals and the Commission on Appointments shall be constituted within 30 days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its members, to discharge such powers and functions as are herein conferred upon it. 13. Sec. 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each member. 14. Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. Read:

1) ARNAULT vs. NAZARENO, 87 Phil. 29 123

124 “A witness who refuses to answer a query by the Committee may be detained during the term of the members imposing said penalty but the detention should not be too long as to violate the witness’ right to due process of law.” Congress must have a duly published Rules; otherwise, the Senate or the House of Representatives could not investigate in aid of legislation. VIRGILLO GARCILLANO VS. HOUSE OF REEPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION ET AL, December 23, 2008

More than three years ago, tapes ostensibly containing a wiretapped conversatio purportedly between the President of the Philippines and a high-ranking official of th Commission on Elections (COMELEC) surfaced. They captured unprecedented public attentio and thrust the country into a controversy that placed the legitimacy of the present administratio on the line, and resulted in the near-collapse of the Arroyo government. The tapes, notoriousl referred to as the “Hello Garci” tapes, allegedly contained the President’s instructions t COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 200 presidential elections. These recordings were to become the subject of heated legislative hearing conducted separately by committees of both Houses of Congress.228[1]

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leade Francis G. Escudero delivered a privilege speech, “Tale of Two Tapes,” and set in motion congressional investigation jointly conducted by the Committees on Public Information, Publi Order and Safety, National Defense and Security, Information and Communications Technology and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, severa versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau o Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NB Deputy Director Samuel Ong submitted to the respondent House Committees seven allege “original” tape recordings of the supposed three-hour taped conversation. After prolonged an impassioned debate by the committee members on the admissibility and authenticity of th recordings, the tapes were eventually played in the chambers of the House.229[2]

On August 3, 2005, the respondent House Committees decided to suspend the hearing indefinitely. Nevertheless, they decided to prepare committee reports based on the said recording and the testimonies of the resource persons.230[3]

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed wit this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Orde and/or Writ of Preliminary Injunction 231[4] docketed as G.R. No. 170338. He prayed that th respondent House Committees be restrained from using these tape recordings of the “illegall obtained” wiretapped conversations in their committee reports and for any other purpose. H further implored that the said recordings and any reference thereto be ordered stricken off th records of the inquiry, and the respondent House Committees directed to desist from further usin the recordings in any of the House proceedings.232[5]

Without reaching its denouement, the House discussion and debates on the “Garci tapes abruptly stopped.

228[1]

Rollo (G.R. No. 179275), p. 168.

229[2]

Rollo (G.R. No. 170338), pp. 7-9.

230[3]

Id. at 9.

231[4]

Id. at 1-38.

232[5]

Id. at 36-38.

124

125

After more than two years of quiescence, Senator Panfilo Lacson roused the slumberin issue with a privilege speech, “The Lighthouse That Brought Darkness.” In his discourse, Senato Lacson promised to provide the public “the whole unvarnished truth — the what’s, when’ where’s, who’s and why’s” of the alleged wiretap, and sought an inquiry into the perceive willingness of telecommunications providers to participate in nefarious wiretapping activities.

On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred to th Senate Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who ha previously filed two bills233[6] seeking to regulate the sale, purchase and use of wiretappin equipment and to prohibit the Armed Forces of the Philippines (AFP) from performing electora duties.234[7]

In the Senate’s plenary session the following day, a lengthy debate ensued when Senato Richard Gordon aired his concern on the possible transgression of Republic Act (R.A.) No 4200235[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 content of the “Hello Garci” tapes. However, she recommended a legislative investigation into the role o the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other governmen entities in the alleged illegal wiretapping of public officials.236[9]

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justice of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for th Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, 237[10] docketed a G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. The argued in the main that the intended legislative inquiry violates R.A. No. 4200 and Section 3 Article III of the Constitution.238[11]

As the Court did not issue an injunctive writ, the Senate proceeded with its public hearing on the “Hello Garci” tapes on September 7,239[12] 17240[13] and October 1,241[14] 2007.

Intervening as respondents,242[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 an Antonio F. Trillanes filed their Comment243[16] on the petition on September 25, 2007. The Court subsequently heard the case on oral argument.244[17]

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of th resource persons summoned by the Senate to appear and testify at its hearings, moved to interven as petitioner in G.R. No. 179275.245[18]

233[6]

Rollo (G.R. No. 179275), pp. 215-220.

234[7]

Id. at 169.

235[8]

An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communications and for Other Purposes. 236[9]

Rollo (G.R. No. 179275), pp. 169-170.

237[10]

Id. at 3-17.

238[11]

Id. at 7-13.

239[12]

Id. at 24.

240[13]

Id. at 44.

241[14]

Memorandum of Respondents-Intervenors, p. 6.

242[15]

Rollo (G.R. No. 179275), pp. 68-70.

243[16]

Id. at 71-90. 244

245[18]

[17]

Id. at 62. The Court identified the following issues for discussion in the October 2, 2007 Oral Argument: Whether the petitioners have locus standi to bring this 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 Whether these Rules must be published by every Congress. b 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. (Id. at 66.)

Motion for Leave to Intervene and Petition-in-Intervention filed on October 26, 2007.

125

126

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 an 179275.246[19]

It may be noted that while both petitions involve the “Hello Garci” recordings, they hav different objectives—the first is poised at preventing the playing of the tapes in the House an their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop th 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. -I-

Before delving into the merits of the case, the Court shall first resolve the issue on th parties’ standing, argued at length in their pleadings.

In Tolentino v. COMELEC,247[20] we explained that “‘[l]egal standing’ or locus standi refer to a personal and substantial interest in a case such that the party has sustained or will sustai direct injury because of the challenged governmental act x x x,” thus,

generally, a party will be allowed to litigate only when (1) he can show that he has personall suffered some actual or threatened injury because of the allegedly illegal conduct of th government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely t be redressed by a favorable action.248[21]

The gist of the question of standing is whether a party has “alleged such a personal stake in th outcome of the controversy as to assure that concrete adverseness which sharpens the presentatio of issues upon which the court so largely depends for illumination of difficult constitutiona questions.”249[22]

However, considering that locus standi is a mere procedural technicality, the Court, i recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arroyo250[2 articulates that a “liberal policy has been observed, allowing ordinary citizens, members o Congress, and civic organizations to prosecute actions involving the constitutionality or validity o laws, regulations and rulings.”251[24] The fairly recent Chavez v. Gonzales252[25] even permitted non-member of the broadcast media, who failed to allege a personal stake in the outcome of th controversy, to challenge the acts of the Secretary of Justice and the National Telecommunication Commission. The majority, in the said case, echoed the current policy that “this Court ha repeatedly and consistently refused to wield procedural barriers as impediments to its addressin and resolving serious legal questions that greatly impact on public interest, in keeping with th Court’s duty under the 1987 Constitution to determine whether or not other branches o government have kept themselves within the limits of the Constitution and the laws, and that the have not abused the discretion given to them.”253[26]

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition b alleging that he is the person alluded to in the “Hello Garci” tapes. Further, his was publicl identified by the members of the respondent committees as one of the voices in the recordings. 2 [27] Obviously, therefore, petitioner Garcillano stands to be directly injured by the Hous committees’ actions and charges of electoral fraud. The Court recognizes his standing to institut the petition for prohibition.

246[19]

Resolution dated November 20, 2007.

247[20]

465 Phil. 385, 402 (2004).

248[21]

Tolentino v. Commission on Elections, id.

249[22]

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.

250[23]

G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160.

251[24]

David v. Macapagal-Arroyo, id. at 218.

252[25]

G.R. No. 168338, February 15, 2008, 545 SCRA 441.

253[26]

Id.

254[27]

Reply in G.R. No. 170338, pp. 36-37.

126

127

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging tha they are concerned citizens, taxpayers, and members of the IBP. They are of the firm convictio that any attempt to use the “Hello Garci” tapes will further divide the country. They wish to see th legal and proper use of public funds that will necessarily be defrayed in the ensuing publi hearings. They are worried by the continuous violation of the laws and individual rights, and th blatant attempt to abuse constitutional processes through the conduct of legislative inquirie purportedly in aid of legislation.255[28]

Intervenor Sagge alleges violation of his right to due process considering that he i summoned to attend the Senate hearings without being apprised not only of his rights therei through the publication of the Senate Rules of Procedure Governing Inquiries in Aid o Legislation, but also of the intended legislation which underpins the investigation. He furthe intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds involve in the conduct of the questioned hearings.256[29]

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the law and that intervenor Sagge asserts his constitutional right to due process, 257[30] they satisfy th requisite personal stake in the outcome of the controversy by merely being citizens of th Republic.

Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,258[31] we fin sufficient petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation that the continuou conduct by the Senate of the questioned legislative inquiry will necessarily involve the expenditur of public funds.259[32] It should be noted that in Francisco, rights personal to then Chief Justic Hilario G. Davide, Jr. had been injured by the alleged unconstitutional acts of the House o Representatives, yet the Court granted standing to the petitioners therein for, as in this case, the 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—whic were also supposedly violated by the therein assailed unconstitutional acts.260[33]

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners an intervenor Sagge advance constitutional issues which deserve the attention of this Court in view o their seriousness, novelty and weight as precedents. The issues are of transcendental an paramount importance not only to the public but also to the Bench and the Bar, and should b resolved for the guidance of all.261[34]

Thus, in the exercise of its sound discretion and given the liberal attitude it has shown i prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal standing o petitioners Ranada and Agcaoili and intervenor Sagge. - II -

The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedl stressed in our prior decisions is the principle that the exercise by this Court of judicial power i limited to the determination and resolution of actual cases and controversies. 262[35] By actual case we mean existing conflicts appropriate or ripe for judicial determination, not conjectural o anticipatory, for otherwise the decision of the Court will amount to an advisory opinion. Th power of judicial inquiry does not extend to hypothetical questions because any attempt a abstraction could only lead to dialectics and barren legal questions and to sterile conclusion unrelated to actualities.263[36] Neither will the Court determine a moot question in a case in whic 255[28]

Rollo (G.R. No. 179275), p. 4.

256[29]

Petition-in-Intervention, p. 3.

257[30]

David v. Macapagal-Arroyo, supra note 23, at 223.

258[31]

460 Phil. 830 (2003).

259[32]

Francisco, Jr. v. The House of Representatives, id. at 897.

260[33]

Francisco, Jr. v. The House of Representatives, supra note 31, at 895.

261[34]

Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.

262[35]

Dumlao v. COMELEC, 184 Phil. 369, 377 (1980). This case explains the standards that have to be followed in the exercise of the power of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case. 263[36]

La Bugal-B’laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890 (2004).

127

128

no practical relief can be granted. A case becomes moot when its purpose has become stale. 264[37] is unnecessary to indulge in academic discussion of a case presenting a moot question as judgment thereon cannot have any practical legal effect or, in the nature of things, cannot b enforced.265[38]

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, th issuance of an injunctive writ to prohibit the respondent House Committees from playing the tap recordings and from including the same in their committee report. He likewise prays that the sai tapes be stricken off the records of the House proceedings. But the Court notes that the recording were already played in the House and heard by its members. 266[39] There is also the widel publicized fact that the committee reports on the “Hello Garci” inquiry were completed an submitted to the House in plenary by the respondent committees. 267[40] Having been overtaken b these events, the Garcillano petition has to be dismissed for being moot and academic. After al prohibition is a preventive remedy to restrain the doing of an act about to be done, and no intended to provide a remedy for an act already accomplished.268[41] - III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot b allowed to continue with the conduct of the questioned legislative inquiry without dul 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 th House of Representatives, or any of its respective committees may conduct inquiries in aid o legislation in accordance with its duly published rules of procedure.” The requisite of publicatio of the rules is intended to satisfy the basic requirements of due process. 269[42] Publication is indee imperative, for it will be the height of injustice to punish or otherwise burden a citizen for th transgression of a law or rule of which he had no notice whatsoever, not even a constructive one. 2 [43] What constitutes publication is set forth in Article 2 of the Civil Code, which provides tha “[l]aws shall take effect after 15 days following the completion of their publication either in th Official Gazette, or in a newspaper of general circulation in the Philippines.”271[44]

The respondents in G.R. No. 179275 admit in their pleadings and even on oral argumen that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been publishe in newspapers of general circulation only in 1995 and in 2006. 272[45] With respect to the presen Senate of the 14th Congress, however, of which the term of half of its members commenced o June 30, 2007, no effort was undertaken for the publication of these rules when they first opene their session.

Recently, the Court had occasion to rule on this very same question. In Neri v. Senat Committee on Accountability of Public Officers and Investigations,273[46] we said:

Fourth, we find merit in the argument of the OSG that respondent Committees likewis violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordanc 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 t publish its rules of procedure governing inquiries in aid of legislation because every Senate i 264[37]

Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496 SCRA 13, 46.

265[38]

Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130, 138.

266[39]

Rollo (G.R. No. 170338), p. 9.

267[40]

See news article “Separate findings, no closure” by Michael Lim Umbac published in The Philippine Daily Inquirer on March 29, 2006; News item “5 House committees in ‘Garci’ probe file report on Monday” published in The Manila Bulletin on March 25, 2006. 268[41]

Simon, Jr. v. Commission on Human Rights, G.R. No. 100150, January 5, 1994, 229 SCRA 117, 135-136; Agustin v. De la Fuente, 84 Phil. 515, 517 (1949). 269[42]

Bernas, The 1987 Constitution of the Philippines, A Commentary, 1996 ed., p. 679.

270[43]

Tañada v. Tuvera, 220 Phil. 422, 432-433 (1985).

271[44]

As amended on June 18, 1987 by Executive Order No. 200 entitled “Providing for the Publication of Laws Either in the Official Gazette or in a Newspaper of General Circulation in the Philippines as a Requirement for their Effectivity”. 272[45]

Rollo (G.R. No. 179275), p. 179; Memorandum of Respondents-Intervenors, pp. 9-10.

273[46]

G.R. No. 180643, March 25, 2008, 549 SCRA 77, 135-136.

128

129

distinct from the one before it or after it. Since Senatorial elections are held every three (3) year for one-half of the Senate’s membership, the composition of the Senate also changes by the end o each term. Each Senate may thus enact a different set of rules as it may deem fit. Not havin published its Rules of Procedure, the subject hearings in aid of legislation conducted by th 14th Senate, are therefore, procedurally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this rulin with the following rationalization:

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 term of six years each. Thus, the term of twelve Senators expires every three years, leaving les than a majority of Senators to continue into the next Congress. The 1987 Constitution, lik 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 no a continuing body because less than majority of the Senators continue into the next Congress. Th consequence is that the Rules of Procedure must be republished by the Senate after every expiry o the term of twelve Senators.274[47]

The subject was explained with greater lucidity in our Resolution275[48] (On the Motion fo 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 dissolve as an entity with each national election or change in the composition of its members. However, i the conduct of its day-to-day business the Senate of each Congress acts separately an independently of the Senate of the Congress before it. The Rules of the Senate itself confirms thi 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 th 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 eve legislative investigations, of the Senate of a particular Congress are considered terminated upo the expiration of that Congress and it is merely optional on the Senate of the succeeding Congres 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 th succeeding Congress (which will typically have a different composition as that of the previou Congress) should not be bound by the acts and deliberations of the Senate of which they had n part. If the Senate is a continuing body even with respect to the conduct of its business, the pending matters will not be deemed terminated with the expiration of one Congress but will, as matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of th conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s mai 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 election shall begin their term of office, the President may endorse the Rules to the appropriate committe for amendment or revision. 274[47]

Id. at 297-298.

275[48]

Dated September 4, 2008.

129

130

The Rules may also be amended by means of a motion which should be presented at least one da before its consideration, and the vote of the majority of the Senators present in the session shall b required for its approval. RULE LII DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in forc until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition of th Senate after an election and the possibility of the amendment or revision of the Rules at the start o 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 vali from the date of their adoption until they are amended or repealed. Such language i conspicuously absent from the Rules. The Rules simply state “(t)hese Rules shall take effect seve (7) days after publication in two (2) newspapers of general circulation.” The latter does no explicitly provide for the continued effectivity of such rules until they are amended or repealed. I view of the difference in the language of the two sets of Senate rules, it cannot be presumed tha the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the nex Congress may easily adopt different rules for its legislative inquiries which come within the rul on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducte in accordance with the duly published rules of procedure is categorical. It is incumbent upon th Senate to publish the rules for its legislative inquiries in each Congress or otherwise make th published rules clearly state that the same shall be effective in subsequent Congresses or until the 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 eve in the next Congress, it could have easily adopted the same language it had used in its main rule 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.276[49] 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 276[49]

TSN, Oral Arguments, March 4, 2008, (G.R. No. 179275), pp. 413-414.

130

131 pamphlet form available at the Senate, is not sufficient under the Tañada 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 Tañada 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. The invocation by the respondents of the provisions of R.A. No. 8792,277[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.278[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.279[52] It 277[50]

Entitled “An Act Providing for the Recognition and Use of Electronic Commercial and Non-Commercial Transactions and Documents, Penalties for Unlawful Use Thereof and For Other Purposes,” approved on June 14, 2000. 278[51]

MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 15, 2007, 536 SCRA 408. (Emphasis supplied.) 279[52]

2 3

Sections 6, 7 and 10 of R.A. No. 8792 read:Sec. 6. Legal Recognition of Data Messages. Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message. Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and – (a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability, and can be authenticated so as to be usable for subsequent reference, in that – (i) The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and (ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all the relevant circumstances. (b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the document not being presented or retained in its original form. (c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if – (i) There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form; and (ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity. For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. This Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence. Sec. 10. Original Documents. – (1) Where the law requires information to be presented or retained in its original form, that requirement is met by an electronic data message or electronic document if: a The integrity of the information from the time when it was first generated in its final form, as an electronic data message or electronic document is shown by evidence aliunde or otherwise; and b Where it is required that information be presented, that the information is capable of being displayed to the person to whom it is to be presented. Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being presented or retained in its original form. For the purposes of subparagraph (a) of paragraph (1): a the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and b the standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all

131

132 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.” 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. MAY THE SENATE COMMITTEE ON FOREIGN RELATIONS CONDUCT INVESTIGATIONS IN AID OF LEGISLATION FOR AN ALLEGED ILLEGAL ACTS COMMITTED BY POLICE GENERALS IN MOSCOW, RUSSIA WHICH IS OUTSIDE THE PHILIPPINES? SPOUSES PNP DIRECTOR ELISEO DE LA PAZ & MARIA FE DE LA PAZ VS. SENATE relevant circumstances.

132

133 COMMITTEE ON FOREIGN AFFAIRS, G.R. No. 184849, February 13, 2009 This is a Petition for Certiorari and Prohibition280[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. The antecedents are as follow – On October 6, 2008, a Philippine delegation of eight (8) senior Philippine National Police (PNP) officers arrived in Moscow, Russia to attend the 77 th 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). 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.281 [2] Senator Santiago emphatically defended respondent 280[1]

Rollo, pp. 3-21.

281[2]

Id. at 28. 133

134 Committee’s jurisdiction and commanded Balajadia to arrest petitioners. 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 Comment282[3] on January 22, 2009. The petition must inevitably fail. First. Section 16(3), Article VI of the Philippine Constitution states: “Each House shall determine the rules of its proceedings.” 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. 283 [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 Tañada v. Cuenco,284[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. 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 282[3]

Id. at 126-137.

283[4] 284[5]

See Morrero v. Bocar, 37 O.G. 445. 100 Phil. 101 (1957). 134

135 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. 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. 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.285[6] The Moscow incident would reflect on our country’s compliance with the obligations required of state-parties under these conventions. Thus, the respondent 285[6]

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. 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, recordkeeping and the reporting of suspicious transactions; Art. 7(2): 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.)

135

136 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. 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 Order286[7] of arrest, signed by ten (10) senators, with the Senate President himself approving it, in accordance with the Senate Rules. Fifth. The Philippine Senate has already published its Rules of Procedure Governing Inquiries in Aid of Legislation in two newspapers of general circulation.287[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.288[9] Consequently, the order for her arrest was effectively withdrawn. WHEREFORE, the petition is DISMISSED for lack of merit and for being moot and academic. Power of Congress to conduct investigation in aid of legislation; distinguish said power with its power to call department secretaries, 286[7]

Rollo, pp. 138-139. Publication was made in the October 31, 2008 issues of the Manila Daily Bulletin and the Malaya. 288[9] Rollo, p. 143. 287[8]

136

137 etc., during “question hour”

SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 CARPIO MORALES, J.: The Facts: In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled “Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005”; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled “The Philippines as the Wire-Tapping Capital of the World”; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled “Clear and Present Danger”; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal – Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the Socalled “Gloriagate Scandal”; and (5) Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines. Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter dated September 27, 2005, requested for its postponement “due to a pressing operational situation that demands [his] utmost personal attention” while “some of the invited AFP officers are currently attending to other urgent operational matters.” 137

138 On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter 289 dated September 27, 2005 “respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited” in order to “afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation.” Senate President Drilon, however, wrote 290 Executive Secretary Ermita that the Senators “are unable to accede to [his request]” as it “was sent belatedly” and “[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week.” Senate President Drilon likewise received on September 28, 2005 a letter from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured. On September 28, 2005, the President of the Philippines issued E.O. 464, “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES,” which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows: SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. – (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: 1

Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

2

Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998). 289 290

Annex “B,” id. at 52. Annex “C,” id. at 53.

138

139 3

Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

4

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

5

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002). (b) Who are covered. – The following are covered by this executive order:

1

Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;

2

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;

3

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

4

Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and

5

Such other officers as may be determined by the President. SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied) A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” Considering that no member of the executive department would want to appear in the above Senate investigations in aid of legislation by virtue of Proc. No. 464, the petitioners filed the present petitions to declare the same unconstitutional because the President abused her powers in issuing Executive Order No. 464. I S S U E S: 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress; 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation. H E L D: 139

140

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Court’s power of judicial review are present is in order. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.291 Invoking this Court’s ruling in National Economic Protectionism Association v. Ongpin292 and Valmonte v. Philippine Charity Sweepstakes Office,293 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.294 The Supreme Court, however, held that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives,295 this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. I The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied) The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,296 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate. Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate’s power to punish Arnault for contempt, this Court held: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry – with process to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which 291 292 293 294 295 296

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133. G.R. No. 67752, April 10, 1989, 171 SCRA 657. G.R. No. 78716, September 22, 1987 (res). Rollo (G.R. No. 169777), p. 117. Supra note 39 at 136. 87 Phil. 29 (1950).

140

141 the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which is not infrequently true – recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.297 . . . (Emphasis and underscoring supplied) That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. 298 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation. Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations. As discussed in Arnault, the power of inquiry, “with process to enforce it,” is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. For one, as noted in Bengzon v. Senate Blue Ribbon Committee,299 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such 297 298 299

Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927). Id. at 46. G.R. 89914, Nov. 20, 1991, 203 SCRA 767.

141

142 instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory for the same reasons stated in Arnault.300 In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power — the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour is therefore CONSTITUTIONAL. It is different insofar as Sections 2 and 3 are concerned. Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are “covered by the executive privilege.” The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 — “Nature, Scope and Coverage of Executive Privilege” —, it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.301 (Emphasis and underscoring supplied)

300 301

Supra. Supra note 82 at 189.

142

143 The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. 2 E.O 464 likewise violates the constitutional provision on the right to information on matters of public concern. There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress — opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the 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.302 (Emphasis and underscoring supplied) The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature’s power of inquiry. 3 The implementation of Proc. 464 before it was published in the Official Gazette as illegal. Due process thus requires that the people should have been apprised of this issuance before it was implemented. This is clear from the doctrine laid down in the case of TANADA VS. TUVERA. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), “ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES,” are declared VOID. Bengzon, Jr. vs. Senate Blue Ribbon Committee, Nov. 20, 1991 302

G.R. No. 74930, February 13, 1989, 170 SCRA 256.

143

144

This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or injunctive relief, to enjoin the respondent Senate Blue Ribbon committee from requiring the petitioners to testify and produce evidence at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations. Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a "purely private transaction" which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to due process. The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 1Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committee 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 power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one's self. The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Seante alone. As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate or to expel a member. Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in its judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made. A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying that he had "taken over " the FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 that there has been no takeover by him (Lopa); and that theses repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as they are malicious.

144

145 The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September 1988, to avail of the privilege hour, 17 so that he could repond to the said Lopa letter, and also to vindicate his reputation as a Member of the Senate of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and "malicious." Thus, in his speech, 18 Senator Enrile said, among others, as follows: It appeals, therefore, 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 RA 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. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins vs. United States, 20 it was held : ... The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed statutes. It includes surveys of defects in our social, economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of congress. This was freely conceded by Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible. (emphasis supplied) Broad as it is, the power is not, however, without limitations. Since congress may only investigate into those 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 mattes that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. ... Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman vs. Pamaran, 26 the Court reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidence before it, it is only because we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution. Investigation in aid of legislation; Executive Privilege ROMULO L. NERI VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, G.R. No. 180643, March 25, 2008 LEONARDO-DE CASTRO, J. (En Banc) 145

146

THE FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People’s Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senate. At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate. Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was “out of town” during the other dates. In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-togovernment project, to be financed through a loan from the Chinese Government. On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He 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 Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege”. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,303[6] (b) whether or not she directed him to prioritize it, 304[7] and (c) whether or not she directed him to approve.305[8] Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on November 20, 2007. However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioner’s testimony on the ground of executive privilege. The pertinent portion of the letter reads: With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007. Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006). Specifically, Sec. Neri sought guidance on the possible invocation of 303[6]

Transcript of the September 26, 2007 Hearing of the respondent Committees, pp.91-92. 304[7] Id., pp. 114-115. 305[8]

Id., pp. 276-277.

146

147 executive privilege on the following questions, to wit: a Whether the President followed up the (NBN) project? b Were you dictated to prioritize the ZTE? c Whether the President said to go ahead and approve the project after being told about the alleged bribe? 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). 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. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads: Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The Senate expects your explanation on or before 2 December 2007. On November 29, 2007, petitioner replied to respondent Committees, manifesting 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, thus: It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with. In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of petitioner’s request that he “be furnished in advance” as to what else he needs to clarify so that he may adequately prepare for the hearing. On December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show cause Letter dated November 22, 2007.

147

148 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, citing him 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. The said Order states: ORDER For failure to appear and testify in the Committee’s hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony. The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement. On the same date, petitioner moved for the reconsideration of the above Order.306[9] He insisted that he has not shown “any contemptible conduct worthy of contempt and arrest.” He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter “through the issuance of declaration of contempt” and arrest. In view of respondent Committees’ issuance of the contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order. On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment. Petitioner contends that respondent Committees’ show cause Letter and contempt Order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are “candid discussions meant to explore options in making policy decisions.” According to him, these discussions “dwelt on the impact of the bribery scandal involving high government 306[9]

See Letter dated January 30, 2008. 148

149 officials on the country’s diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines.” He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita307[10] and United States v. Reynolds.308[11] Lastly, he argues that he is precluded from disclosing communications made to him in official confidence under Section 7309[12] of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24310[13] (e) of Rule 130 of the Rules of Court. Respondent Committees assert the contrary. They argue that (1) petitioner’s testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner’s arrest; and (4) petitioner has not come to court with clean hands. I S S U E S: 1

What communications between the President and petitioner Neri are covered by the principle of ‘executive privilege’? 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decisionmaking and (ii) information, which might impair our diplomatic as well as economic relations with the People’s Republic of China? 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations “dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of

307[10] 308[11] 309

310[13]

488 SCRA 1 (2006). 345 U.S. 1 (1953). [12]

Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x (c) Disclosure and/or misuse of confidential information. Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest.

SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters learned in confidence in the following cases. (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure. 149

150 foreign investors and lenders in the Philippines” x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art. II (Full public disclosure of all transactions involving public interest) Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust) Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2

What is the proper procedure to be followed in invoking executive privilege?

3

Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena? H E L D: At the core of this controversy are the two (2) crucial queries, to wit: First, are the communications elicited by the subject three (3) questions covered by executive privilege? And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order? There is merit in the petition. At the outset, a glimpse at the landmark case of Senate v. Ermita311[18] becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining

311[18]

Supra. 150

151 to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.312[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different. This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court’s pronouncement in Senate v. Ermita313[20] is clear: When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault. I The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege We start with the basic premises where the parties have conceded. The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that 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.314[21] Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. 312[19] 313[20] 314[21]

Ibid. Ibid. Arnault v. Nazareno, 87 Phil 32 (1950) 151

152

The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.315[22] This directs us to the consideration of the question -is there a recognized claim of executive privilege despite the revocation of E.O. 464? A There is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464 At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act316[23] and the Federal Advisory Committee Act,317 [24] the Philippines has retained its constitutional origination, occasionally interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita’s Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,318[25] and Chavez v. PEA.319[26] There was never a mention of E.O. 464. While these cases, especially Senate v. Ermita,320[27] have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.321[28] In United States v. Nixon,322[29] the U.S. Court recognized a great public interest in preserving “the confidentiality of conversations that take place in the President’s performance of his official duties.” It thus considered presidential communications as “presumptively privileged.” Apparently, the presumption is founded on the “President’s generalized interest in confidentiality.” The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide “the President and those who assist him… with freedom 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.” In In Re: Sealed Case,323[30] the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; 315[22]

Senate v. Ermita, p. 58. 5 U.S. C. § 552 317[24] 51 U.S. C. app. 318[25] 433 Phil. 506 (2002). 319[26] G.R. No. 130716, December 9, 1998, (360 SCRA 132 ). 320[27] Supra. 321[28] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at p. 2. 322[29] 418 U.S. 683. 323[30] In Re: Sealed Case No. 96-3124, June 17, 1997. 316[23]

152

153 one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” The latter includes ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decisionmaking of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the President’s unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones324[31] As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Case confines the privilege only to White House Staff that has “operational proximity” to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as “quintessential and non-delegable Presidential power,” such as commander-inchief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.325[32] Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG326[38], this Court held that there is a “governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters.” In Chavez v. PEA,327[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,328[40] appointing,329[41] pardoning,330[42] and diplomatic331[43] powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. 324[31]

Id. CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at pp. 18-19. 326[38] 360 Phil. 133 (1998). 327[39] Supra. 328[40] Section 18, Article VII. 329[41] Section 16, Article VII. 330[42] Section 19, Article VII. 331[43] Section 20 and 21, Article VII. 325[32]

153

154

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1)

The protected communication must relate to a “quintessential and non-delegable presidential power.”

2

The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

3

The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.332[44] In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.333[45] Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, 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. The third element deserves a lengthy discussion. United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: [N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of

332[44]

CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and Recent Developments, supra.. 333[45] Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903. 154

155 immunity from circumstances.

judicial

process

under

all

The foregoing is consistent with the earlier case of Nixon v. Sirica,334[46] where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government “in the manner that preserves the essential functions of each Branch.” 335[47] Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon336[48] that “demonstrated, specific need for evidence in pending criminal trial” outweighs the President’s “generalized interest in confidentiality.” However, the present case’s distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to “limit the scope of its decision.” It stressed that it is “not concerned here with the balance between the President’s generalized interest in confidentiality x x x and congressional demands for information.” Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets. Respondent Committees further contend that the grant of petitioner’s claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.337[50] We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the 334[46]

159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973). U.S. v. Nixon, 418 U.S. 683 (1974) 336[48] Supra. 337[50] Citing Section 7, Article 3 of the Constitution. 335[47]

155

156 Senators, with the exception only of those covered by his claim of executive privilege. The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: 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. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713, 338[51] Article 229339[52] of the Revised Penal Code, Section 3 (k) 340[53] of R.A. No. 3019, and Section 24(e)341[54] of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential342[55] and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a 338

[51]

Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x ( c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: 1 To further their private interests, or give undue advantage to anyone; or 2

To prejudice the public interest.

339[52]

Article 229. Revelation of secrets by an officer. – Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos shall be imposed. 340[53] Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. 341

342[55]

[54]

Sec. 24. Disqualification by reason of privileged communications. – The following persons cannot testify as to matters learned in confidence in the following case: x x x (a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.

In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as confidential such as “information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused.” It also stated that “presidential conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. Such information cannot be pried-open by a co-equal branch of government. 156

157 recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information. The former cannot claim that every legislative inquiry is an exercise of the people’s right to information. The distinction between such rights is laid down in Senate v. Ermita: There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executivelegislative powers and privileges which is the subject of careful review by numerous decided cases. B The Claim of Executive Privilege is Properly Invoked We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter.”343[56] A formal and proper claim of executive privilege requires a “precise and certain reason” for preserving their confidentiality.344[57] The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that “this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.” Obviously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient. 343[56] 344[57]

United States v. Reynolds, supra.. Unites States v. Article of Drug, 43 F.R.D. at 190. 157

158

With regard to the existence of “precise and certain reason,” we find the grounds relied upon by Executive Secretary Ermita specific enough so as not “to leave respondent Committees in the dark on how the requested information could be classified as privileged.” The case of Senate v. Ermita only requires that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified. The enumeration is not even intended to be comprehensive.”345[58] The following statement of grounds satisfies the requirement: 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. At any rate, as held further in Senate v. Ermita, 346[59] the 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 to a coordinate and co-equal department. II Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista’s letter, stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he “be furnished in advance” copies of the questions. Without responding to his request for advance list of questions, respondent Committees issued the Order dated January 30, 2008, citing him 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. Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari. Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons. First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. 345[58]

Senate v. Ermita, supra., p. 63. Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L. R. 2d 382 (1953). 158 346[59]

159

Second, 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. 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. 347[61] 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.” 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. 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. And fifth, respondent Committees’ issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as “unsatisfactory” and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. A fact worth highlighting is that petitioner is not an 347[61]

Trancript of the January 30, 2008 proceedings, p. 29. 159

160 unwilling witness. He manifested several times his readiness to testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as “unsatisfactory.” Undoubtedly, respondent Committees’ actions constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The same quality afflicted their conduct when they (a) disregarded petitioner’s motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioner’s repeated request for an advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege. Even the courts are repeatedly advised to 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. 348[63] Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a coequal branch of the government. In this present crusade to “search for truth,” we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Court’s mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law. The respondents-Committees were therefore stopped from calling the petitioner and ask the three(3) questions mentioned above in connection with his conversations with the President being covered by the “executive privilege” rule. Power of Congress to conduct inquiries in aid of legislation; Right to Privacy; Public disclosure of government transactions; right to information on matters of public concern; accountability of public officers; and right against selfincrimination; CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704 348[63]

Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA 519. 160

161

Sandoval-Gutierrez, J. The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), 349[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.”

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. 455.350[6]

On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.351[7] At the same time, he invoked Section 4(b) of E.O. No. 1 earlier quoted.

Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order352[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.

Hence, this petition.

I S S U E:

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.

349[4]

Annex “E” of the Petition in G.R. No. 174318. Annex “F” of the Petition in G.R. No. 174318. 351[7] Annex “G” of the Petition in G.R. No. 174318. 352[13] Annex “D” of the petition in G.R. No. 174318. 350[6]

161

162 Ranged against it 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.

The Congress’ power of inquiry has been jurisdictions long before it reached our shores Daugherty,353[15] cited in Arnault v. Nazareno.354[16] American courts considered the power of inquiry as to legislate.

recognized in foreign through McGrain v. In those earlier days, inherent in the power

In Arnault, the Supreme 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. 355[18] Then came the 1987 Constitution incorporating the present Article VI, Section 12. What was 353[15]

273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927). No. L- 3820, 87 Phil. 29 (1950). 355[18] Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22. 162 354[16]

163 therefore implicit under the 1935 Constitution, as influenced by American jurisprudence, became explicit under the 1973 and 1987 Constitutions.356[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.357[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,358[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, Section 4(b) is 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.359[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.”360[23] PCGG belongs to this class.

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

356[19]

Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.737. 357[20] Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.739. 358[21] G.R. No. 169777, April 20, 2006. 359[22] Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195. 360[23] Senate v. Ermita, Id. 163

164 office. In other words, public officers are but the servants of the people, and not their rulers.361[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 non-accountability. In Presidential Commission on Good Government v. Peña, 362[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 nonaccountability 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. x x x. x x

x

x

x x

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. Sandiganbayan363[26] reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions.

NEGROS ORIENTAL II ELECTRIC COOPERATIVE VS. SANGGUNIANG PANGLUNGSOD OF DUMAGUETE CITY, G.R. No. 72492, Nov. 5, 1987, 155 SCRA 421 Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the power to compel the attendance and testimony of witnesses, nor the power to order the arrest of witnesses who fail to obey its subpoena. It is further argued that assuming the power to compel the attendance and testimony of witnesses to be lodged in said body, it cannot be exercised in the 361[24] 362[25]

De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.

No. L-77663, April 12, 1988, 159 SCRA 558.

363[26]

193 SCRA 282 (1991). 164

165 investigation of matters affecting the terms and conditions of the franchise granted to NORECO II which are beyond the jurisdiction of the Sangguniang Panlungsod. Respondents, for their part, claim that inherent in the legislative functions performed by the respondent Sangguniang Panlungsod is the power to conduct investigations in aid of legislation and with it, the power to punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It is also the position of the respondents that the contempt power, if not expressly granted, is necessarily implied from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-49). Furthermore, the respondents assert that an inquiry into the installation or use of inefficient power lines and its effect on the power consumption cost on the part of Dumaguete residents is well-within the jurisdiction of the Sangguniang Panlungsod and its committees. 1. A line should be drawn between the powers of Congress as the repository of the legislative power under the Constitution, and those that may be exercised by the legislative bodies of local government unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative power. While the Constitution does not expressly vest Congress with the power to punish non-members for legislative contempt, the power has nevertheless been invoked by the legislative body as a means of preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts wield an inherent power to "enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The exercise by Congress of this awesome power was questioned for the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held that the legislative body indeed possessed the contempt power. But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26, L.ed., 377.) 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 real 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. . . (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370 [1955]).

165

166 The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an unexplored area of jurisprudence, and succeeded in supplying the raison d' etre of this power of Congress even in the absence of express constitutional grant. Whether or not the reasons for upholding the existence of said power in Congress may be applied mutatis mutandis to a questioned exercise of the power of contempt by the respondent committee of a city council is the threshold issue in the present controversy. 3. 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, and local legislative bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power attaches not to the discharge of legislative functions per se but to the character of the legislature as one of the three independent and coordinate branches of government. The same thing cannot be said of local legislative bodies which are creations of law. 4. To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to punish non-members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible justification for the issuance of a subpoena and for the punishment of non-members for contumacious behaviour would be for said power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow local legislative bodies or administrative agencies to exercise these powers without express statutory basis would run afoul of the doctrine of separation of powers. These cannot be presumed to exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P. 337 which provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the contempt power in conjunction with the subpoena power in any government body inevitably poses a potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to testify, the law cannot be liberally construed to have impliedly granted such powers to local legislative bodies. It cannot be lightly presumed that the sovereign people, the ultimate source of all government powers, have reposed these powers in all government agencies. The intention of the sovereign people, through their representatives in the legislature, to share these unique and awesome powers with the local legislative bodies must therefore clearly appear in pertinent legislation. There being no provision in the Local Government Code explicitly granting local legislative bodies, the power to issue compulsory process and the power to punish for contempt, the Sanggunian Panlungsod of Dumaguete is devoid of power to punish the petitioners Torres and Umbac for contempt. The Ad-Hoc Committee of said legislative body has even less basis to claim that it can exercise these powers. 166

167 - HOW LONG CAN THE LEGISLATIVE BODY DETAIN A WITNESS WHO REFUSES TO ANSWER OR OBEY ITS LAWFUL ORDERS WITHOUT VIOLATING THE CONSTITUTION?

11. Sections 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the Rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the HR at least 3 days before their scheduled appearance. Interpellations shall not be limited to written questions, but may not cover matter matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. 12. Section 23 [1] The Congress, by a vote of 2/3 of both Houses in a joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. [2] In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by a resolution of the Congress, such powers shall cease upon the next adjournment thereof. a. Note the limitations and restrictions for the delegation. b. Note also that it could be withdrawn by mere resolution. c. What is referred to by the phrase "next adjournment?" d. Read: 1) ARANETA VS. DINGLASAN, 84 Phil. 369 - the first emergency powers cases 2) RODRIGUEZ VS. GELLA, 92 Phil. 603 - the second emergency powers cases. 3) Republic Act No. 6826, Dec.20, 1989 which grants emergency powers to President Aquino. 13. Sections 24. All appropriations, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of representatives, but the Senate may propose or concur with amendments. NOTE: In Tolentino vs. Secretary of Finance, the Supreme Court held that the E-VAT Law is constitutional even if the same was the VERSION which came from the Senate, not from the House of Representatives. This is so because the Senate is allowed to “propose amendments” to bills which must exclusively originate from the House of Representatives. 167

168 14. Section 25 [1] The Congress may not increase the appropriation recommended by the President for the operation of the government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. [2 No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any provision or enactment shall be limited in its operation to the appropriation to which it relates. [3] The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. [4] A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the national treasurer, or to be raised by a corresponding revenue proposal therein. [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 the 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. [6] Discretionary funds appropriated for particular officials shall be disbursed only for the purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. [7] If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. Read: DEMETRIA vs. ALBA, 148 SCRA 208 17. Section 26. [1] Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. [2] No bill shall be passed unless it has passed 3 readings on separate days, and printed copies thereof in its final form have been distributed to its members 3 days before its passage, except when the President certifies as to its necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of the bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. Read: 1) TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208 2) DE LA CRUZ VS. PARAS, 123 SCRA 569 3) INSULAR LUMBER VS. CTA, 104 SCRA 710 2) LIDASAN VS. COMELEC, 21 SCRA 496 The case questions the law entitled "An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur", but which includes barrios located in another province Cotabato to be spared from attack planted upon the constitutional mandate that "No bill which 168

169 may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill"? Doubtless, as the statute stands, twelve barrios in two municipalities in the province of Cotabato are transferred to the province of Lanao del Sur. This brought about a change in the boundaries of the two provinces. Apprised of this development, on September 7, 1967, the Office of the President, through the Assistant Executive Secretary, recommended to Comelec that the operation of the statute be suspended until "clarified by correcting legislation." Comelec, by resolution of September 20, 1967, stood by its own interpretation, declared that the statute "should be implemented unless declared unconstitutional by the Supreme Court." It may be well to state, right at the outset, that the constitutional provision contains dual limitations upon legislative power. First. Congress is to refrain from conglomeration, under one statute, of heterogeneous subjects. Second. The title of the bill is to be couched in a language sufficient to notify the legislators and the public and those concerned of the import of the single subject thereof. Of relevance here is the second directive. The subject of the statute must be "expressed in the title" of the bill. This constitutional requirement "breathes the spirit of command." Compliance is imperative, given the fact that the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill. In fact, in the case of House Bill 1247, which became Republic Act 4790, only its title was read from its introduction to its final approval in the House of Representatives where the bill, being of local application, originated. Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. And this, to lead them to inquire into the body of the bill, study and discuss the same, take appropriate action thereon, and, thus, prevent surprise or fraud upon the legislators. The test of the sufficiency of a title is whether or not it is misleading; and, which technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth, a title which is so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act, is bad. In determining sufficiency of particular title its substance rather than its form should be considered, and the purpose of the constitutional requirement, of giving notice to all persons interested, should be kept in mind by the court. With the foregoing principles at hand, we take a hard look at the disputed statute. The title "An Act Creating the Municipality of Dianaton, in the Province of Lanao del Sur" 8 projects the impression 169

170 that solely the province of Lanao del Sur is affected by the creation of Dianaton. Not the slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in this new Lanao del Sur town. The phrase "in the Province of Lanao del Sur," read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a two-pronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur. The baneful effect of the defective title here presented is not so difficult to perceive. Such title did not inform the members of Congress as to the full impact of the law; it did not apprise the people in the towns of Buldon and Parang in Cotabato and in the province of Cotabato itself that part of their territory is being taken away from their towns and province and added to the adjacent Province of Lanao del Sur; it kept the public in the dark as to what towns and provinces were actually affected by the bill. These are the pressures which heavily weigh against the constitutionality of Republic Act 4790. 5) ALALAYAN VS. NAPOCOR, 24 SCRA 172 6) CORDERO VS. CABATUANDO, 6 SCRA 418 7) TATAD VS. SECRETARY OF ENERGY, November 5, 1997, 281 SCRA 330 18. Section 27. [1] Every bill passed by 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 consideration , 2/3 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 2/3 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 30 days after the date of receipt thereof; otherwise, it shall become a law as if he signed it. [2] The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill, but the veto shall not affect the item or items to which he does not object. 1) Read: a. BENGZON VS. SECRETARY OF JUSTICE, 62 Phil. 912 b. BOLINAO ELECTRONICS VS. VALENCIA, 11 SCRA 486 c. NEPTALI GONZALES VS. MACARAIG, November 19, 1990 Section 55 of the Appropriations Act of 1989 (Section 55 [FY '89] hereinafter), which was vetoed by the President, reads: SEC. 55. Prohibition Against the Restoration or Increase of Recommended Appropriations Disapproved and /or Reduced by Congress: No item of appropriation recommended by the President in the Budget submitted to Congress pursuant to Article VII, Section 22 of the Constitution which has been disapproved or reduced in this Act shall be restored or increased by the use of appropriations authorized for other purposes by augmentation. An item of appropriation for any purpose recommended by the President in the Budget shall be deemed to have been disapproved by 170

171 Congress if no corresponding appropriation for the specific purpose is provided in this Act. We quote below the reason for the Presidential veto: The provision violates Section 25 (5) of Article VI of the Constitution. If allowed, this Section would nullify not only the constitutional and statutory authority of the President, but also that of the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and Heads of Constitutional Commissions, to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriation. A careful review of the legislative action on the budget as submitted shows that in almost all cases, the budgets of agencies as recommended by the President, as well as those of the Senate, the House of Representatives, and the Constitutional Commissions, have been reduced. An unwanted consequence of this provision is the inability of the President, the President of the Senate, Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions to augment any item of appropriation of their respective offices from savings in other items of their respective appropriations even in cases of calamity or in the event of urgent need to accelerate the implementation of essential public services and infrastructure projects. I am vetoing this provision for the reason that it violates Section 25 (5) of Article VI of the Constitution in relation to Sections 44 and 45 of P.D. No. 1177 as amended by R.A. No. 6670 which authorizes the President to use savings to augment any item of appropriations in the Executive Branch of the Government. The fundamental issue raised is whether or not the veto by the President of Section 55 of the 1989 Appropriations Bill (Section 55 FY'89), and subsequently of its counterpart Section 16 of the 1990 Appropriations Bill (Section 16 FY'90), is unconstitutional and without effect. The focal issue for resolution is whether or not the President exceeded the item veto power accorded by the Constitution. Or differently put, has the President the power to veto "provisions" of an Appropriations Bill? Petitioners contend that Section 55 FY '89) and Section 16 (FY'90) are provisions and not items and are, therefore, outside the scope of the item veto power of the President. The veto power of the President is expressed in Article VI, Section 27 of the 1987 Constitution reading, in full, as follows:

Sec. 27. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. Paragraph (1) refers to the general veto power of the President and if exercised would result in the veto of the entire bill, as a general rule. Paragraph (2) is what is referred to as the item veto power or the line-veto power. It allows the exercise of the veto over a particular item or items in an appropriation, revenue, or tariff bill. As specified, the President may not veto less than all of an item of an Appropriations Bill. In other words, the power given the Executive to disapprove any item or items in an Appropriations Bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. 171

172

It is to be noted that the counterpart provision in the 1987 Constitution (Article VI, Section 27 [2], supra), is a verbatim reproduction except for the public official concerned. In other words, also eliminated has been any reference to the veto of a provision. The vital question is: should this exclusion be interpreted to mean as a disallowance of the power to veto a provision, as petitioners urge? The terms item and provision in budgetary legislation and practice are concededly different. An item in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill (Bengzon, supra, at 916). It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an 'item' of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill." It is our considered opinion that, notwithstanding the elimination in Article VI, Section 27 (2) of the 1987 Constitution of any reference to the veto of a provision, the extent of the President's veto power as previously defined by the 1935 Constitution has not changed. This is because the eliminated proviso merely pronounces the basic principle that a distinct and severable part of a bill may be the subject of a separate veto (Bengzon v. Secretary of Justice, 62 Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The Constitution of the Republic of the Philippines, 1st ed., 154-155, [1988]). The restrictive interpretation urged by petitioners that the President may not veto a provision without vetoing the entire bill not only disregards the basic principle that a distinct and severable part of a bill may be the subject of a separate veto but also overlooks the Constitutional mandate that any provision in the general appropriations bill shall relate specifically to some particular appropriation therein and that any such provision shall be limited in its operation to the appropriation to which it relates (1987 Constitution, Article VI, Section 25 [2]). In other words, in the true sense of the term, a provision in an Appropriations Bill is limited in its operation to some particular appropriation to which it relates, and does not relate to the entire bill. But even assuming arguendo that provisions are beyond the executive power to veto, we are of the opinion that Section 55 (FY '89) and Section 16 (FY '90) are not provisions in the budgetary sense of the term. Article VI, Section 25 (2) of the 1987 Constitution provides: Sec. 25 (2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. Explicit is the requirement that a provision in the Appropriations Bill should relate specifically to some "particular appropriation" therein. The challenged "provisions" fall short of this requirement. Firstly, the vetoed "provisions" do not relate to any particular or distinctive appropriation. They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill. Secondly, the disapproved or reduced items are nowhere to be found on the face of the Bill. To discover them, resort will have to be made to the original recommendations made by the President and to the source indicated by petitioners themselves, i.e., the "Legislative Budget Research and Monitoring Office" (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more of an expression of Congressional policy in respect of augmentation from savings rather than a budgetary appropriation. Consequently, Section 55 (FY '89) and Section 16 (FY '90) although labelled as "provisions," are actually 172

173 inappropriate provisions that should be treated as items for the purpose of the President's veto power. (Henry v. Edwards [1977] 346 S Rep. 2d, 157-158). Just as the President may not use his item-veto to usurp constitutional powers conferred on the legislature, neither can the legislature deprive the Governor of the constitutional powers conferred on him as chief executive officer of the state by including in a general appropriation bill matters more properly enacted in separate legislation. The Governor's constitutional power to veto bills of general legislation ... cannot be abridged by the careful placement of such measures in a general appropriation bill, thereby forcing the Governor to choose between approving unacceptable substantive legislation or vetoing "items" of expenditure essential to the operation of government. The legislature cannot by location ot a bill give it immunity from executive veto. Nor it circumvent the Governor's veto power over substantive legislation by artfully drafting general law measures so that they appear to be true conditions or limitations on an item of appropriation. Otherwise, the legislature would be permitted to impair the constitutional responsibilities and functions of a co-equal branch of government in contravention of the separation of powers doctrine ... We are no more willing to allow the legislature to use its appropriation power to infringe on the Governor's constitutional right to veto matters of substantive legislation than we are to allow the Governor to encroach on the constitutional powers of the legislature. In order to avoid this result, we hold that, when the legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be treated as items for purposes of the Governor's item veto power over general appropriation bills. Petitioners maintain, however, that Congress is free to impose conditions in an Appropriations Bill and where conditions are attached, the veto power does not carry with it the power to strike them out, citing Commonwealth v. Dodson (11 SE 2d 130, supra) and Bolinao Electronics Corporation v. Valencia (No. L-20740, June 30, 1964, 11 SCRA 486). In other words, their theory is that Section 55 (FY'89) and Section 16 (FY'90) are such conditions/restrictions and thus beyond the veto power. There can be no denying that inherent in the power of appropriation is the power to specify how money shall be spent; and that in addition to distinct "items" of appropriation, the Legislature may include in Appropriation Bills qualifications, conditions, limitations or restrictions on expenditure of funds. Settled also is the rule that the Executive is not allowed to veto a condition or proviso of an appropriation while allowing the appropriation itself to stand (Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra, which held that the veto of a condition in an Appropriations Bill which did not include a veto of the items to which the condition related was deemed invalid and without effect whatsoever. The Power of augmentation and The Validity of the Veto The President promptly vetoed Section 55 (FY'89) and Section 16 (FY'90) because they nullify the authority of the Chief Executive and heads of different branches of government to augment any item in the General Appropriations Law for their respective offices from savings in other items of their respective appropriations, as guaranteed by Article VI, Section 25 (5) of the Constitution. Said provision reads: 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. (Emphasis ours). 173

174 If, indeed, the Legislature believed that the exercise of the veto powers by the Executive were unconstitutional, the remedy laid down by the Constitution is crystal clear. A Presidential veto may be overriden by the votes of two-thirds of members of Congress (1987 Constitution, Article VI, Section 27[l], supra). But Congress made no attempt to override the Presidential veto. Petitioners' argument that the veto is ineffectual so that there is "nothing to override" (citing Bolinao) has lost force and effect with the executive veto having been herein upheld. e.

BENGZON VS. DRILON, April 15, 1992

In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed. Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court upheld the authority of the President and other key officials to augment any item or any appropriation from savings in the interest of expediency and efficiency. The Court stated that: There should be no question, therefore, that statutory authority has, in fact, been granted. And once given, the heads of the different branches of the Government and those of the Constitutional Commissions are afforded considerable flexibility in the use of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way endangered because the transfer is made within a department (or branch of government) and not from one department (branch) to another. The Constitution, particularly Article VI, Section 25(5) also 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. In the instant case, the vetoed provisions which relate to the use of savings for augmenting items for the payment of the pension differentials, among others, are clearly in consonance with the abovestated pronouncements of the Court. The veto impairs the power of the Chief Justice to augment other items in the Judiciary's appropriation, in contravention of the constitutional provision on "fiscal autonomy." III Finally, it can not be denied that the retired Justices have a vested right to the accrued pensions due them pursuant to RA 1797. The right to a public pension is of statutory origin and statutes dealing with pensions have been enacted by practically all the states in the United States (State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in most countries of the world. Statutory provisions for the support of Judges or Justices on retirement are founded on services rendered to the state. Where a 174

175 judge has complied with the statutory prerequisite for retirement with pay, his right to retire and draw salary becomes vested and may not, thereafter, be revoked or impaired. (Gay v. Whitehurst, 44 So ad 430) Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of which is to entice competent men and women to enter the government service and to permit them to retire therefrom with relative security, not only those who have retained their vigor but, more so, those who have been incapacitated by illness or accident. (In re: Amount of the Monthly Pension of Judges and Justices Starting From the Sixth Year of their Retirement and After the Expiration of the Initial Five-year Period of Retirement, (190 SCRA 315 [1990]). As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of the Supreme Court and Court of Appeals. This was amended by RA 1797 which provided for an automatic adjustment of the pension rates. Through the years, laws were enacted and jurisprudence expounded to afford retirees better benefits. P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing that the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court and Court of Appeals were entitled was to be computed on the basis of the highest monthly aggregate of transportation, living and representation allowances each Justice was receiving on the date of his resignation. The Supreme Court in a resolution dated October 4, 1990, stated that this law on gratuities covers the monthly pensions of retired Judges and Justices which should include the highest monthly aggregate of transportation, living and representation allowances the retiree was receiving on the date of retirement. (In Re: Amount of the Monthly Pension of Judges and Justices, supra) The rationale behind the veto which implies that Justices and Constitutional officers are unduly favored is, again, a misimpression. Immediately, we can state that retired Armed Forces officers and enlisted men number in the tens of thousands while retired Justices are so few they can be immediately identified. Justices retire at age 70 while military men retire at a much younger age some retired Generals left the military at age 50 or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to both groups. Any ideas arising from an alleged violation of the equal protection clause should first be directed to retirees in the military or civil service where the reason for the retirement provision is not based on indubitable and constitutionally sanctioned grounds, not to a handful of retired Justices whose retirement pensions are founded on constitutional reasons. The provisions regarding retirement pensions of justices arise from the package of protections given by the Constitution to guarantee and preserve the independence of the Judiciary. The Constitution expressly vests the power of judicial review in this Court. Any institution given the power to declare, in proper cases, that act of both the President and Congress are unconstitutional needs a high degree of independence in the exercise of its functions. Our jurisdiction may not be reduced by Congress. Neither may it be increased without our advice and concurrence. Justices may not be removed until they reach age 70 except through impeachment. All courts and court personnel are under the administrative supervision of the Supreme Court. The President may not appoint any Judge or Justice unless he or she has been nominated by the Judicial and Bar Council which, in turn, is under the Supreme Court's supervision. Our salaries may not be decreased during our continuance in office. We cannot be designated to any agency performing administrative or quasi-judicial functions. We are specifically given fiscal autonomy. The Judiciary is not only independent of, but also co-equal and coordinate with 175

176 the Executive and Legislative Departments. (Article VIII and section 30, Article VI, Constitution) Any argument which seeks to remove special privileges given by law to former Justices of this Court and the ground that there should be no "grant of distinct privileges" or "preferential treatment" to retired Justices ignores these provisions of the Constitution and, in effect, asks that these Constitutional provisions on special protections for the Judiciary be repealed. The integrity of our entire constitutional system is premised to a large extent on the independence of the Judiciary. All these provisions are intended to preserve that independence. So are the laws on retirement benefits of Justices. One last point. The Office of the Solicitor General argues that: . . . Moreover, by granting these benefits to retired Justices implies that public funds, raised from taxes on other citizens, will be paid off to select individuals who are already leading private lives and have ceased performing public service. Said the United States Supreme Court, speaking through Mr. Justice Miller: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow upon favored individuals . . . is nonetheless a robbery because it is done under the forms of law . . ." (Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16) The above arguments are not only specious, impolite and offensive; they certainly are unbecoming of an office whose top officials are supposed to be, under their charter, learned in the law. Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired Justices of the Supreme Court and the Court of Appeals may no longer be in the active service. Still, the Solicitor General and all lawyers under him who represent the government before the two courts and whose predecessors themselves appeared before these retirees, should show some continuing esteem and good manners toward these Justices who are now in the evening of their years. All that the retirees ask is to be given the benefits granted by law. To characterize them as engaging in "robbery" is intemperate, abrasive, and disrespectful more so because the argument is unfounded. If the Comment is characteristic of OSG pleadings today, then we are sorry to state that the then quality of research in that institution has severely deteriorated. In the first place, the citation of the case is, wrong. The title is not LAW Association v. Topeka but Citizen's Savings and Loan Association of Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involved the validity of a statute authorizing cities and counties to issue bonds for the purpose of building bridges, waterpower, and other public works to aid private railroads improve their services. The law was declared void on the ground that the right of a municipality to impose a tax cannot be used for private interests. The case was decided in 1874. The world has turned over more than 40,000 times since that ancient period. Public use is now equated with public interest. Public money may now be used for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform where only private persons are the immediate beneficiaries. What was "robbery" in 1874 is now called "social justice." There is nothing about retirement benefits in the cited case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia which could not even spell "loan" correctly. Good lawyers are expected to go to primary sources and to use only relevant citations. 176

177

The Court has been deluged with letters and petitions by former colleagues in the Judiciary requesting adjustments in their pensions just so they would be able to cope with the everyday living expenses not to mention the high cost of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991); Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to the public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. That generosity is the least he should expect now that his work is done and his youth is gone. Even as he feels the weariness in his bones and glimpses the approach of the lengthening shadows, he should be able to luxuriate in the thought that he did his task well, and was rewarded for it. For as long as these retired Justices are entitled under laws which continue to be effective, the government can not deprive them of their vested right to the payment of their pensions. WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as illegal and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are declared valid and subsisting. The respondents are ordered to automatically and regularly release pursuant to the grant of fiscal autonomy the funds appropriated for the subject pensions as well as the other appropriations for the Judiciary. The resolution in Administrative Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be implemented as promulgated. 2) What is a "pocket veto?" 3) What are the three ways by which a bill becomes a law? 3. PHILCONSA VS. ENRIQUEZ, 235 SCRA 506 What is the so-called “executive impoundment”? It means that although an item of appropriation is not vetoed by the President, he however refuses for whatever reason, to spend funds made possible by Congress. It is the failure to spend or obligate budget authority of any type. Proponents of impoundment have invoked at least three (3) principal sources of authority of the President. [1] authority to impound given to him by Congress, either expressly or impliedly; [2] the executive power drawn from his power as Commander-in-chief; and [3] the Faithful execution clause of the Constitution. Note that in this case the SC held that the Countryside Development Fund (CDF) of Congressmen and Senators is CONSTITUTIONAL because the same is “set aside for ‘infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by said Senators and Congressmen. 19. Section 28. [1] The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. [2] The Congress, may by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the government. 177

178 [3] Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. [4] No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of the Congress. Section 29. (1) No money shall be paid out of the treasury except in pursuance of an appropriation made by law. No public money or property shall be appropriated, applied, paid or employed…directly or indirectly for the benefit, use, or support of any sect, denomination, or system of religion…except when such preacher, priest… is assigned to the AFP, or to any penal institution, or government orphanage or leprosarium. All money collected on any tax for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. Read: 1. Garcia vs. Executive Sec., 211 SCRA 219 1-a) PEPSI COLA VS. THE CITY OF BUTUAN, 24 SCRA 789 2) PROVINCE OF ABRA VS. HERNANDO, 107 SCRA 104 3) APOSTOLIC PREFECT OF BAGUIO VS. TREASURER, 71 Phil. 547 4) PASCUAL VS. SECRETARY OF PUBLIC WORKS, 110 Phil. 331 3) AGLIPAY VS. RUIZ, 64 Phil. 201 4) MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987 Respondent Dr. Francisco A. Perez was named outstanding Health Worker for 1980 by the Ministry of Health on January 22, 1981. Being such an awardee, Dr. Perez was granted by the Ministry of Health a two-step salary increase in accordance with the merit increase program as enunciated in Letter of Instructions (LOI) No. 562. Thereafter, the Ministry of Health requested the Sangguniang Panglunsod of San Pablo City, which is paying Dr. Perez' salary in full to appropriate the amount corresponding to the merit increase in its current budget. For lack of legal basis, the Bureau of Local Government opposed the proposed merit increase because the provisions of LOI No. 562 apply only to officials/employees in the national government, and consequently, awardee Dr. Perez was not entitled thereto, since he is an employee of the local government as provided for in the charter of San Pablo City. This prompted Dr. Perez to request the Ministry of Health to make the corresponding allocation to issue a notice of salary adjustment effective January 1, 1981. The Minister of Justice, upon a query made by the Ministry of Health, in his Opinion No. 177, Series of 1981, dated November 20, 1981, acknowledged that the merit increase program applies only to the officials/employees of the national government but declared Dr. Perez as one such official or employee and concluded that the Ministry of Health should pay the merit increase to him. Relying on such opinion, the Ministry of Health issued to respondent Dr. Perez on December 1, 1981 a notice of salary adjustment which release of the amount was denied by the Office of the Budget and Management which insisted that the awardee is an employee of the local or city government who is not covered by the merit increase program. Dr. Perez made his appeal therefrom to the Ministry of Health who forwarded it, recommending favorable action thereon to the 178

179 Office of the President of the Philippines. The latter referred the appeal to the Minister of the Budget who affirmed his earlier decision of disallowing the merit increase and reiterating the same reasons. A petition for mandamus to compel the Office of the Budget and Management to pay the merit increase was filed by Dr. Perez before the lower court which granted the aforementioned favorable decision, subject matter of the present petition for review on certiorari before Us by petitioners arguing that: 1. The position of private respondent as the City Health Officer of San Pablo City is embraced in Sec. 7 of Pres. Decree (P.D.) No. 1136 which states among other things that the salary plan provided for in Sec. 8 of the same decree shall cover the City Officer, among other officials, whose salary shall be paid out of city funds and therefore a local government employee whose position does not appear in the list of national government employees defined under another law (P.D. 985). 2. The constitution provides that no money shag be paid out of the Treasury except in pursuance of an appropriation made by law. Since there is no such appropriation, the Minister of the Budget cannot be compelled to release the amount for the payment of the merit salary increase because such allocation entails the exercise of judgment and discretion of the Minister of the Budget which cannot be controlled by mandamus. 3. The decision declaring respondent Dr. Perez as an employee of the national government would have far reaching effects such that all other city health officers and local officials similarly situated would also be so entitled to an personal benefits given to national employee. Dr. Perez's exemplary accomplishment which merited for him the grant to a two-step increase must yield to the overriding economic consideration of availability of funds which the government must set aside for the purpose. We do not agree with the arguments set down by petitioners. Private respondent invites Our attention to the City Charter of San Pablo City (CA #5201, Sec. 87, May 7, 1940) more specifically, Art. IV thereof, which provides that the position of a City Health Officer is not included among the heads of the regular departments of the city but included among the national officials performing municipal functions under the direct control of the Health Minister and not the city mayor as provided for in Art. XIV of the same charter. Such principle is reiterated in the Decentralization Act of 1967 which shows that the appointing authority is the Health Minister and not the local officials. Petitioner Minister of the Budget admitted thru the testimony of its representative, Alice S. Torres, chief of the Compensation and Position Classification and a specialist thereon that the City Health Officer is under the administrative and technical supervision of the Ministry of Health (p. 69, tsn, June 16, 1983, p. 72, Rollo). Be it noted that, Section 7 of PD 1136 relied upon by petitioners provides that the basic salary of the City Health Officer is paid from city funds. However, the last paragraph of the same Sec. 7, excludes the city health officer from the classification of local government official as can be gathered from the phrase "... except those occupied by (a) officials whose compensation is fixed in the constitution, Presidential Decrees and other laws and (b) officials and employees who are under the direct supervision and control of the National Government or its agencies and who are paid wholly or partially from national funds." Provincial and city health officers are all considered national government officials irrespective of the source of funds of their salary because the preservation of health is a national service. Also their positions are partially funded by the national government. Some are receiving onehalf of their salary from the national funds and the other one-half from local funds. We cannot likewise ignore the opinions of the Ministry of Justice cited by private respondent to wit: 1) Opinion No. 26, Series of 1976 which 179

180 categorically rules that "Officials and employees of provincial and city health offices render service as officials and employees of the Bureau of Health (Ministry of Health) and they are for that reason not local but national officials under the direct supervision and control of the Ministry of Health; 2) Opinion No. 177, Series of 1981, which is specific and definitive that the private respondent is a national government employee and the Ministry of Health should pay the merit increase awarded to him. In this 1981 opinion, it was explained in detail how the said funds corresponding to his merit increase could be legally disbursed contrary to the unfounded speculations expressed by the petitioners. Lastly, there is no basis in petitioner's allegations that they cannot be compelled by mandamus as the appropriation is not authorized by law and it is discretionary on the part of the Ministry of the Budget whether or not to allocate. Respondent Dr. Perez has been proven to be a national government official, hence covered by the merit promotion plan of the government more particularly the Health Ministry wherein private respondent is its lone beneficiary for the year 1980 in Region IV. It thus becomes the ministerial duty of the Budget Minister to approve the request for allotment. Having failed to do so, he could be compelled by mandamus. 20. Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in the Constitution without its advice and concurrence. TERESITA FABIAN VS. HONORABLE ANIANO DESIERTO, G.R. No. 129742, September 16, 1998) Regalado, J. Section 27 of RA 6770 or the Ombudsman Act of 1989 provides: “In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for Certiorari within 10 days from receipt of the written notice of the order, directive or decision or denial of the Motion for Reconsideration in accordance with Rule 45 of the Rules of Court” Issue: Is Section 27 of RA 6770 constitutional? Held: Section 27 of RA 6770 is unconstitutional since it increases the appellate jurisdiction of the Supreme Court without its advice and consent as provided under Section 30, Article VI of the 1987 Constitution. As explained in FIRST LEPANTO CERAMICS INC. VS. CA, 237 SCRA 519, the aforesaid constitutional provision “was intended to give the Supreme Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court.” Appeal of cases decided by the Office of the Ombudsman covered by Section 27 of RA 6770 shall be filed with the Court of Appeals. Read:

MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987 180

181 21. Sections 32. The Congress, shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any law or part thereof passed by the Congress or local legislative body after the registration of a petition therefore signed by at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters thereof. Read again RA 6735 & SANTIAGO VS. COMELEC & PIRMA PART VII ARTICLE VII - THE EXECUTIVE DEPARTMENT Section 1. The executive power shall be vested in the President of the Philippines. 1. a. Define executive power b. May the President refuse to enforce a law on the ground that in his opinion it is unconstitutional? No. Otherwise, he will be violating the doctrine of separation of powers because by doing so, he will be arrogating unto himself the power to interpret the law, not merely to implement it. Read: 1) L.S. MOON & CO. VS. HARRISON, 43 Phil.38 2) GOV'T. VS. SPRINGER, 50 Phil. 529, read also the separate opinion. 3) VALLEY TRADING VS. CFI, 171 SCRA 501 What is the extent of the executive or administrative orders that may be issued by the President as the Chief Executive, under the Administrative Code of 1987? BLAS OPLE VS. RUBEN TORRES, ET AL. G.R. No. 127685, July 23, 1998 Puno, J. Facts: On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”. The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY . The AO was questioned by Senator Ople on the following grounds: 1. The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the Philippines; 181

182 2. The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to appropriate funds for such expenditure; and 3. The AO violates the citizen’s right to privacy protected by the Bill of Rights of the Constitution. Held: 1. The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power, which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power. 2. The AO likewise violates the right to privacy since its main purpose is to provide a “common reference number to establish a linkage among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a fingerprint, retinal scan, hand geometry or facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM. AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified purposes thereby violating the citizen’s right to privacy. Sections 2. No person shall be elected President unless he is a natural born citizen of the Philippines, a registered voter, able to read and write, at least 182

183 forty years o f age on the day of the election, and a resident o f the Philippines for at least ten years immediately preceding the election. Section 3. There shall be a Vice President who shall have the same qualifications and term of office and be elected with and in the same manner as the President. He may be removed from Office in the same manner as the President. The Vice President may be appointed as a Member of the cabinet. Such appointment requires no confirmation. Note: Section 13, Art. VII. The President, Vice President, the members of the cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure… Section 8, Article VIII. The Judicial and Bar Council-----Secretary of Justice.. Section 2, Article XI. The President, VP, …may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Section 4. The President and the Vice President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the 30th day of June next following their election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than 4 years shall be qualified for election to the same office at any time. No Vive President shall serve for more than 2 successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. The returns of every election for President and Vice President duly certified by the Board of canvassers of each province or city shall be transmitted to the congress…. The candidate having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal number of votes, one of them shall forthwith be chosen by the vote of a majority of all the members of both Houses of Congress voting separately. Section 5…Oath 183

184 Section 6. Residence…Salary may not be decreased…not increased until after the expiration of his terms…shall not received any other emolument from the government of from any source during their tenure. Section 7. ..shall assume office at the beginning of their terms. …P & VP not qualified, the Senate President shall act as President or the Speaker, if SP is not yet qualified.. Congress shall pass a law if the SP & Speaker are not qualified to act as President… Section 9. VP is vacant, the President shall nominate from the Senate of HR and who shall become VP upon confirmation of majority vote of the members of the Senate & H of R voting separately. Section 10. …In case of vacancy in the office of the President and VP, Congress shall convene on the 3rd day after the vacancy to enact a law calling for special election to be held not later than 60 days…the law is deemed certified under Section 26, par. 2 of Art. VI and shall become a law upon 3rd reading.. Special elections cannot be postponed but no special election if the vacancy occurs within 18 months before the next presidential election. Section 11. When President transmits to Congress his written declaration of inability to perform his duties, the VP shall be acting President until the President transmits another declaration to the contrary. When majority of the members of the cabinet transmit to the Senate President a written declaration that the President is unable to perform his duties, the VP shall act as the President. If the President transmits to the SP his declaration that there is no disability, he shall reassume his post but if the majority of all the members of the Cabinet still insists that the President is unable to discharge his powers, CONGRESS SHALL DECIDE THE ISSUE. IT MUST CONVENE WITHIN 48 HOURS if not in session without need of a call. If 2/3 of both Houses, voting separately, determines that the President is unable to discharge his powers, the VP shall act as President. Otherwise, the President shall continue exercising his powers and duties of his office.

184

185 Section 12. In case of serious illness of the President, the public shall be informed of the state of his health. The members of the cabinet in charge of national security and foreign relations and the Chief of the AFP shall not be denied access to the President. a. Qualifications, disqualifications, term of office, etc., of the President and Vice-President. b. See: Sec. 17 of Art. XVIII. c. Read: PHILIPPINE BAR ASSOCIATION VS. COMELEC, 140 SCRA 453 (The snap presidential election case) 3. Sections 7-12 a. Note the order of succession to the office of the President and Vice President b. Query: Is President Gloria Macapagal Arroyo a de jure or a de facto President? If de jure, how did she succeed? Resignation or permanent disability of former President Estrada? JOSEPH EJERCITO ESTRADA VS. DESIERTO, G.R. Nos. 146710-15 and 146738, March 2, 2001 Puno, J [En Banc] F A C T S: 1. On 13 November 2000, the Speaker of the House of Representatives transmitted to the Senate the Articles of Impeachment charging petitioner Joseph Estrada with bribery, graft and corruption, betrayal of public trust and culpable violation of the Constitution. The impeachment of petitioner resulted from disclosures made by Ilocos Sur Governor, Luis Chavit Singson in October, 2000 that petitioner had received payments from illegal jueteng operations and excise taxes; The impeachment trial began on 07 December 2000. A highlight of the December 2000 hearings was the testimony of CLARISSA OCAMPO of the Equitable – PCI Bank that she witnessed petitioner affixing the signature of “JOSE VELARDE” on bank documents involving a P500 M investment agreement; 2. On 16 January 2001, the issue of whether or not to open what has been dubbed as the “Second Envelope” arose before the impeachment court. The envelope allegedly contained proof that petitioner held P3.3 B in a secret bank account under the name “JOSE VELARDE”. The motion to open the said envelope was struck down by the senator-judges by a vote of 11-10. The public and private prosecutors walked out of the trial to protect the ruling. Hours after the controversial ruling, the public began to rally at the EDSA SHRINE; the rally continued in the following days; 3. On January 17, 2001, the public prosecutors tendered their collective resignation to the Speaker. They also filed a Manifestation of WITHDRAWAL OF APPEARANCE with the Impeachment Court. Thereafter, Senator Roco moved for the indefinite postponement of the impeachment proceedings. Chief Justice Davide granted the same; 4. In the afternoon of 19 January, 2001, the Chief of Staff of the AFP withdrew his support to President Estrada. The same is true with the PNP Chief and majority of the members of the Estrada Cabinet; 185

186

5. In early hours of 20 January 2001, negotiations for the peaceful and orderly transfer of power began between petitioner’s representatives and that of respondent GLORIA MACAPAGAL-ARROYO, then Vice President. Later in the morning, Arroyo reportedly requested the Chief Justice to administer her oath. The letter, sent through fax was quoted thus by Justice Vitug in his concurring opinion, as follows: “The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term. Almost all of his cabinet members have resigned and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize him as President. “In view of this, I am assuming the position of the President of the Philippines. Accordingly, I would like to take my oath as President of the Republic before the Honorable Chief Justice Hilario Davide, Jr. today, 20 January 2001, 12:00 noon at EDSA SHRINE, Quezon City, Metro Manila. “May I have the honor to invite the members of the Honorable Court to attend the oath-taking”. 6. At 12 noon, Arroyo was sworn in by Chief Justice Davide as the 14 th President of the Republic of the Philippines. At 2:30 p.m., petitioner and his family left Malacanang Palace. Petitioner issued the following statement: “At 12 o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her Proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacanang Palace, the seat of the Presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. Mabuhay” “(Sgd.) Joseph Ejercito Estrada” 186

187

7. Petitioner also sent copies of the following letter to the Senate President and Speaker of the House of Representatives on 20 January 2001. The copy for the House Speaker was sent at 8:30 a.m.. Another copy was transmitted to the Senate President and received only at 9:00 p.m. “Sir: By virtue of the provisions of Section 11, Art. VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be Acting President. (Sgd.) Joseph Ejercito Estrada” 8. Prior to the events of January, 2001, 6 cases had been filed before the Office of the Ombudsman Aniano Desierto. A special panel was created to investigate these cases. On January 22, 2001, petitioner was directed to file his counteraffidavit and affidavit of his witnesses; 9.

On February 5, 2001, petitioner filed these cases to prohibit the respondent from investigating the charges of plunder, bribery and graft and corruption on the ground that he is immune from suit;

10.

On February 6, 2001, the petitioner filed the petition docketed as GR No. 146738 for quo warranto against Arroyo praying that he be declared the lawful President of the Philippines and respondent GMA merely as acting President on account of his temporary disability. I S S U E S: 1. DO THE CASES AT BAR INVOLVE A POLITICAL QUESTION AND ARE BEYOND THE JURISDICTION OF THE SUPREME COURT TO DECIDE? 2. DID PETITIONER ESTRADA RESIGN AS PRESIDENT? 3. IS THE PETITIONER TEMPORARILY UNABLE TO ACT AS PRESIDENT? 4. DOES THE PETITIONER ENJOY IMMUNITY FROM SUIT? IF SO, TO WHAT EXTENT? 5. SHOULD THE PROSECUTION OF ESTRADA BE ENJOINED DUE TO PREJUDICIAL PUBLICITY? H E L D: I No, the cases do not involve political question. In Tanada vs. Cuenco, 103 Phil. 1051 [1957], it was held that political questions refer to “those questions which, under the Constitution are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative and executive branches of the government. It is concerned with issues dependent upon the wisdom, not the legality of a particular measure.” The 1987 Constitution narrowed the reach of the political question doctrine when it expanded the power of judicial review of the court, not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 187

188 IN support of the contention that the cases involve political questions, the respondents cited the cases of LAWYER'’ LEAGE FOR A BETTER PHILIPPINES VS. PRESIDENT CORAZON AQUINO, May 22, 1986 and related cases. The court pointed out that in those cases, it held that the government of President Aquino was the result of a successful but peaceful revolution by the Filipino people. The Freedom Constitution itself declared that the Aquino government was installed through the direct exercise of the power of the Filipino people “in defiance of the 1973 Constitution, as amended.” IN contrast, the Arroyo government is not revolutionary in character. The oath of President Arroyo took at the EDSA Shrine is an oath under the 1987 Constitution where she swore to preserve and defend the 1987 Constitution. The EDSA 1 that installed President Aquino and EDSA II which installed Arroyo are different because the first involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the Office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question, EDSA II involves legal questions. Therefore, the present cases involve legal questions requiring the proper interpretation of provisions of the 1987 Constitution on the scope of presidential immunity from suit and the correct calibration of the right of petitioner against prejudicial publicity. II Using the totality test, the SC held that petitioner Estrada resigned as President. Resignation is not a high level abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. Since Estrada did not write a letter of resignation before evacuating the Malacanang Palace on January 20, 2001, the determination of whether he resigned should be based on his acts and omission before, during and after 20 January 2001. THIS IS THE TOTALITY TEST, THE TOTALITY OF PRIOR, CONTEMPORANEOUS AND POSTERIOR FACTS AND CIRCUMSTANTIAL EVIDENCE BEARING MATERIAL RELEVANCE TO THE ISSUE. The diary of former Executive Secretary Angara as serialized in the Philippine Daily Inquirer on February 4-6, 2001 gives an “authoritative window on the state of mind of the petitioner.” These are: a. On January 19, 2001 at the height of the EDSA protest, Estrada called for a snap presidential election in May 2001 and made it on record that he will not be a candidate. It is an indication that he had given up the presidency even at that time since his term is supposed to be up to 2004; b. Estrada did not object to the suggestion that he consider a “dignified exit” and that he be allowed to go abroad with enough funds; c. Estrada’s statement that he was guaranteed by Chief of Staff Angelo Reyes that he would be given a 5-day grace period in the palace which shows that he had reconciled himself to the reality that he had to resign; d. During the negotiations between the Estrada and Arroyo groups in the early morning of January 20, 2001, the resignation of the petitioner was treated as a fact; 188

189 e. During the 1st round of negotiations, Estrada said “Pagod na pagod na ako. Ayoko masyado nang masakit. Pagod na ako sa red tape, intriga”. The court held that this was a “high grade evidence” that he had resigned. The SC held that “ayoko na” are words of resignation. f. The President’s act of leaving the palace on January 20, 2001 confirmed his resignation. Petitioner’s press release, “his final act and farewell”, acknowledged the oath-taking of Arroyo as President, his reservation about its legality. He said he was leaving the palace for the sake of peace and order. He did not say that he was leaving as a result of a disability and was going to reassume the presidency as soon as the disability appears III NO. The court held that the petitioner has in fact resigned and his claim of inability was laid to rest by Congress. The decision that respondent Arroyo is the de jure President, made by a co-equal branch of the government, cannot be reviewed by the Court. Both Houses of Congress had recognized that Arroyo is the President when they passed Resolution “expressing their support to the administration of Her Excellency Gloria Macapagal Arroyo, President of the Philippines” which was passed on January 24, 2001; another resolution dated January 24, 2001 “expressing full support to the assumption into office by VP Arroyo as President of the Philippines”; and the Resolution dated February 7, 2001 “confirming President Arroyo’s nomination of Senator Teopisto Guingona, Jr. as Vice President of the Philippines.” Both Houses also sent bills for the New President (GMA) to sign into law. Therefore, the Court has no jurisdiction to review the claim of temporary disability and could not revise the decision of Congress recognizing Arroyo as President without transgressing the principle of separation of powers. IV NO. As a non-sitting President, Estrada enjoys no immunity from the criminal charges of plunder, bribery and graft and corruption filed against him. Likewise, the argument that he should first be convicted in the impeachment proceedings before he could be charged criminally is without merit since the impeachment court has adjourned indefinitely insofar as the case against him is concerned. To follow his line of argument would put a perpetual bar against his prosecution. In fact, the Constitutional Commission in its deliberations show that even if the case against an impeachable officer has become moot as a result of his resignation, the proper criminal and civil cases may be filed against him. Also, as held in RE: SATURNINO BERMUDEZ, 145 SCRA 160, an incumbent President is immune from suit or from being brought to court BUT NOT BEYOND. In NIXON VS. FITSGERALD, 457 US 731, the US Supreme Court held that the immunity of the President from civil damages covers only official acts. In the 1997 case of CLINTON VS. JONES, 520 US 681, the US Supreme Court held that the president’s immunity from suits for money damages arising out of official acts is inapplicable to unofficial conduct. Finally, the constitutional provision that a public office is a public trust would be “devalued if we sustain petitioner’s claim that a non-sitting President enjoys immunity from suit for criminal acts committed during his incumbency.” V 189

190 NO. The SC held that the evidence presented by the petitioner is insufficient for the Court to rule that the preliminary investigation by respondent Desierto be enjoined. The claim of the petitioner, based on news reports, that the Ombudsman had prejudged his case is not sufficient ground to stop the investigation. As held in MARTELINO VS. ALEJANDRO, 32 SCRA 106, “to warrant a finding of prejudicial publicity, there must be an actual prejudice---there must be allegation and proof that the judges have been unduly influenced. The accuracy of the reports cited by the petitioner could not be the subject of judicial notice since the Ombudsman is entitled to the presumption of good faith and regularity in the performance of official duty. (NOTE: On April 7, 2001, the Motion for Reconsideration of Estrada of the above decision was denied for lack of merit.) 4. Section 13. The President, VP, Members of the Cabinet or their assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.. They shall not during their tenure, directly or indirectly practice any profession, participate in any business or be financially interested in any contract with…the government or any government owned or controlled corporation or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. Read: 1. PUNZALAN VS. MENDOZA, 140 SCRA 153 2. ADAZA VS. PACANA, 135 SCRA 431 3. Opinion No. 155, Series of 1988 by the Secretary of Justice 4. Executive Order No. 284 5. Civil Liberties Union vs. Exec. Sec., February 22, 1991 5 Sections 14 Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption of office. Section 15. Two months immediately before the next presidential election and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (NOTE: Section 9, Article VIII. The President shall issue the appointments within 90 days from the submission of the list) Read: 1) AYTONA VS. CASTILLO, 4 SCRA 1 2) PAMANTASAN VS. IAC, 140 SCRA 22 6. Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers are vested in him in this Constitution. He shall also appoint all other officers of the government whose appointments are not otherwise provided by law, and those whom he may be authorized by law to appoint… The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. a. Read:

190

191 Temporary Appointments for members of the Cabinet; Ad interim appointments. SEN. AQUILINO PIMENTEL, et al., vs. EXEC. SECRETARY EDUARDO ERMITA, et al., 472 SCRA 587 Carpio, J. Facts: 1. On July 26, 2004, Congress commenced its Regular Session. On August 25, 2004, the Commission on appointments was constituted; 2. While Congress was in session, the President issued appointments as Acting Secretaries to the following: a. Arthur Yap to the Department of Agriculture; b. Alberto Romulo to the Department of Foreign affairs; c. Raul Gonzales to the Department of Justice; d. Florencio Abad to the Department of Education; e. Avelino Cruz, Jr. to the Department of National Defense; f. Rene Villa to the Department of Agrarian Reform; g. Joseph Durano to the Department of Tourism; and h. Michael Defensor to the Department of Environment and Natural Resources. 3. On September 8, 2004, the petitioners questioned said appointments as “Acting Secretary” as UNCONSTITUTIONAL since Congress was in session and it was an act of circumventing the power of the Commission on Appointments confirm the said appointments. They claimed that “while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first having obtained its consent.” 4. On September 22, 2004, Congress adjourned its session; 5. On September 23, 2004, the president issued “ad-interim appointments” to the above-named appointees to the departments to which they were previously appointed in an acting capacity; 6. Thereafter, the respondents moved for the dismissal of this case on the ground that it is now moot and academic considering the issuance of adinterim appointments and subsequent submission of the appointments of the above-named members of the cabinet to the Commission on Appointments for confirmation. I s s u e s: 1. Shall the case be dismissed since it is already moot and academic? 2. Do all the petitioners have the personality to sue? 3. Were the temporary appointments made while Congress was in session to positions subject of confirmation by the Commission on Appointments unconstitutional? H e l d: 1. While it is a rule that courts should not decide moot cases, the courts, as an exception, will rule on it if it is capable of repetition yet evading review (TOLENTINO VS. COMELEC, 420 SCRA 438; ACOP VS. SECRETARY GUINGONA, 383 SCRA 577; VIOLA VS. HON. ALUNAN III, 277 SCRA 409; ALUNAN III VS. MIRASOL, 276 SCRA 501). 2. Only those members of the Commission on Appointments have the personality to sue and not the other petitioners who are not. While it 191

192 was held in SANLAKAS VS. EXECUTIVE SECRETARY, 421 SCRA 656 that members of Congress have the personality to sue if the President’s act has the effect of impairing the powers of Congress, the same is not applicable in this case. This is so because the Commission on Appointments is independent from Congress itself. President Arroyo’s issuance of acting appointments while Congress is in session impairs no power of Congress. 3. The temporary appointments are valid. The power to appoint is essentially executive in nature and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere. The essence of an appointment in an acting capacity is its temporary nature. It is a stopgap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law cannot impose on the President the obligation of automatically appointing the Undersecretary as her alter ego. He must be of the President’s confidence and provided that the temporary appointment does not exceed one (1) year. There is a need to distinguish ad interim appointments and appointments in an acting capacity. While both are effective upon acceptance, ad interim appointments are extended only during the recess of Congress, whereas acting appointments may be extended any time that there is a vacancy. Moreover, ad interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on appointments. Acting appointments are a way of temporarily circumventing the need of confirmation by the Commission on Appointments. 1. CALDERON VS. CARALE, April 23, 11992 1-a) ULPIANO SARMIENTO III VS. SALVADOR MISON, G.R. No. 79774, Dec. 17, 1987, 156 SCRA 549 2. MARY CONCEPCION-BAUTISTA VS. THE COMMISSION ON APPOINTMENTS, April, 13,1989 2-A TERESITA DELES, ET AL. VS. COMMISSION ON APPOINTMENTS, September 4, 1989 3 RAFAEL VS. EMBROIDERY AND APPAREL CONTROL BOARD, 21 SCRA 336 4 OLIVEROS-TORRE VS. BAYOT, 58 SCRA 272; 5 . TARROSA VS. SINGSON, May 25, 1994; 6 NIERE VS. CFI, 54 SCRA 165 b. Distinguish adjournment from recess. c. Differentiate the status of an appointment made by the President while Congress is in session compared to that when it is in recess. 7. Section 17, The President shall have control of all the executive departments , bureaus and offices. He shall ensure that the laws be faithfully executed. President’s Control over the executive department; usurpation of legislative powers and infringement on the citizen’s right to privacy

192

193 KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006 BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006 Carpio, J. President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the Executive Department. This is so despite the fact that the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No. 308[National computerized Identification Reference System] issued by then President Fidel V. Ramos that the same is unconstitutional because “a national ID card system requires legislation because it creates a new national data collection and card issuance system, where none existed before”. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizen’s right to privacy. Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on two (2) grounds: a. usurpation of legislative powers; and b. it infringes on the citizen’s right to privacy Held: 1. The issuance by the President of Proclamation No. 420 is not a usurpation of legislative powers. This is so because EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions… and does not grant such government entities any power that they do not already posses under existing laws. It is not similar to AO 308 because it does not create a notional ID system since it the same applies only to the executive branch of the government, including government owned and controlled corporations but not the judiciary nor the independent constitutional commissions. This only shows that EO 420 does not establish a national ID system because legislation is needed to establish a single ID system which is compulsory to all branches of the government. EO 420 makes existing sectoral card systems of the government entities like the GSIS, SSS, Philhealth and Land Transportation Office less costly, more efficient, reliable and user-friendly to the public. Finally, the issuance of Proclamation No. 420 is a proper subject of executive issuance under the President’ constitutional power of control over government entities in the executive department as well as under the President’s constitutional duty to ensure that laws are faithfully executed. 2. The said Executive Order No. 420 does not violate the citizen’s right to privacy since it does not require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing or employed with the said government entities who are required to provide the required information for the issuance of the said ID. a. Distinguish the power of control over the power of supervision b. Read: 193

194 1. Santos vs. Exec. Sec., April 10, 1992 1-a. Maceda vs. Macaraig, Jr., 197 SCRA 771 1-b. Echeche vs. CA, 198 SCRA 577 The act of the Executive Secretary in reversing the decision of the Secretary of the DENR allowing the payment of the backwages of petitioner is considered an act of the President and therefore valid in accordance with the doctrine of qualified political agency. 1-c. Ganzon vs. CA, 200 SCRA 271 The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him by various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a barangay tanod. Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of arrest was issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other detainees thereby causing injuries He was released only the following day. Finding probable grounds and reasons, the respondent issued a preventive suspension order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days. Then the next investigation was set on September 21, 1988 and the petitioner again asked for a postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were present, together with their respective counsel. The petitioner sought for a postponement which was denied. In these hearings which were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299. He was again ordered suspended. We come to the core question: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend and/or remove local officials. It is the petitioners' argument that the 1987 Constitution no longer allows the President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase 21 as may be provided by law to strip the President of the power of control over local governments. It is a view, so they contend, that finds support in the debates of the Constitutional Commission. The provision in question reads as follows: Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

194

195 It modifies a counterpart provision appearing in the 1935 Constitution, which we quote: Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all Local governments as may be provided by law, and take care that the laws be faithfully executed. The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer. It is to be noted that in meting out the suspensions under question, the Secretary of Local Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local Government Code, we quote: Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the Minister of local Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within seven days from receipt of said complaint, and commence the hearing and investigation of the case within ten days after receipt of such answer of the respondent. No investigation shall be held within ninety days immediately prior to an election, and no preventive suspension shall be imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the preventive suspension shall be lifted. Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official. The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional language? It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not intend to divest the legislature of its right or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. It is a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority as this Court has held It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to discuss the scope and extent of the power of supervision by the President over local 195

196 government officials in contrast to the power of control given to him over executive officials of our government wherein it was emphasized that the two terms, control and supervision, are two different things which differ one from the other in meaning and extent. Thus in that case the Court has made the following digression: "In administration law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." But from this pronouncement it cannot be reasonably inferred that the power of supervision of the President over local government officials does not include the power of investigation when in his opinion the good of the public service so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... xxx

xxx

xxx

"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter." 36 "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. 37 As we held, 38 however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v. Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor General.42 In Lacson, this Court said that the President enjoyed no control powers but only supervision "as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board." 44 However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of disciplinary authority because she did not exercise control powers, but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson: The contention that the President has inherent power to remove or suspend municipal officers is without doubt not well taken. Removal and suspension of public officers are always controlled by the particular law applicable and its proper construction subject to constitutional limitations. In Hebron we stated: Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-which does not et with respect to municipal officers ... In Mondano, the Court held: ... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints 196

197 made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge by one affecting the official integrity of the officer in question." Section 86 of the Revised Administration Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of ... municipalities ... . If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79(c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by Section 110(l), Article VII of the Constitution. The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President, Commissioner Blas Ople would not. The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect. As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure instituted through a system of decentralization." NOTE: The successive suspensions of the Mayor, however, was declared invalid by the Supreme Court. 1-d) MONDANO VS. SILVOSA, 97 Phil. 143 The petitioner is the duly elected and qualified mayor of the municipality of Mainit, province of Surigao. On 27 February 1954 Consolacion Vda. de Mosende filed a sworn complaint with the Presidential Complaints and Action Committee accusing him of (1) rape committed on her daughter Caridad Mosende; and (2) concubinage for cohabiting with her daughter in a place other than the conjugal dwelling. On 6 March the Assistant Executive Secretary indorsed the complaint to the respondent provincial governor for immediate investigation, appropriate action and report. On 10 April the petitioner appeared before the provincial governor in obedience to his summons and was served with a copy of the complaint filed by the provincial governor with provincial board. On the same day, the provincial governor issued Administrative Order No. 8 suspending the petitioner from office. Thereafter, the Provincial Board proceeded to hear the charges preferred against the petitioner over his objection. The Constitution provides: "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed." Under this constitutional provision the President has been invested with the power of control of all the executive departments, bureaus, or offices, but not of all local governments over 197

198 which he has been granted only the power of general supervision as may be provided by law. The Department head as agent of the President has direct control and supervision over all bureaus and offices under his jurisdiction as provided for in section 79 (c) of the Revised Administrative Code, but he does not have the same control of local governments as that exercised by him over bureaus and offices under his jurisdiction. Likewise, his authority to order the investigation of any act or conduct of any person in the service of any bureau or office under his department is confined to bureaus or offices under his jurisdiction and does not extend to local governments over which, as already stated, the President exercises only general supervision as may be provided by law. If the provisions of section 79 (c) of the Revised Administrative Code are to be construed as conferring upon the corresponding department head direct control, direction, and supervision over all local governments and that for the reason he may order the investigation of an official of a local government for malfeasance in office, such interpretation would be contrary to the provisions of paragraph 1, section 10, Article VII, of the Constitution. If "general supervision over all local governments" is to be construed as the same power granted to the Department Head in section 79 (c) of the Revised Administrative Code, then there would no longer be a distinction or difference between the power of control and that of supervision. In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Such is the import of the provisions of section 79 (c) of the Revised Administrative Code and 37 of Act No. 4007. The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." 2 And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question." 3 Section 86 of the Revised Administrative Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of . . . municipalities . . .. If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79 (c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by section 10 (1), Article VII, of the Constitution. In Lacson vs. Roque, 49 Off. Gaz. 93, this Court held that the power of the President to remove officials from office as provided for in section 64 (b) of the Revised Administrative Code must be done "conformably to law;" and only for disloyalty to the Republic of the Philippines he "may at any time remove a person from any position of trust or authority under the Government of the (Philippine Islands) Philippines." Again, this power of removal must be exercised conformably to law. In the indorsement to the provincial governor the Assistant Executive Secretary requested immediate investigation, appropriate action and report on the complaint indorsed to him, and called his attention to section 2193 of the Revised Administrative Code which provides for the institution of judicial proceedings by the provincial fiscal upon direction of the provincial governor. If the indorsement of the Assistant Executive Secretary be taken 198

199 as a designation of the provincial governor to investigate the petitioner, then he would only be acting as agent of the Executive, but the investigation to be conducted by him would not be that which is provided for in sections 2188, 2189 and 2190 of the Revised Administrative Code. The charges preferred against the respondent are not malfeasances or any of those enumerated or specified in section 2188 of the Revised Administrative Code, because rape and concubinage have nothing to do with the performance of his duties as mayor nor do they constitute or involve" neglect of duty, oppression, corruption or any other form of maladministration of office." True, they may involve moral turpitude, but before the provincial governor and board may act and proceed in accordance with the provisions of the Revised Administrative Code referred to, a conviction by final judgment must precede the filing by the provincial governor of charges and trial by the provincial board. Even the provincial fiscal cannot file an information for rape without a sworn complaint of the offended party who is 28 years of age and the crime of concubinage cannot be prosecuted but upon sworn complaint of the offended spouse. 4 The charges preferred against the petitioner, municipal mayor of Mainit, province of Surigao, not being those or any of those specified in section 2188 of the Revised Administrative Code, the investigation of such charges by the provincial board is unauthorized and illegal. The suspension of the petitioner as mayor of the municipality of Mainit is, consequently, unlawful and without authority of law. 1-e. Carpio vs. Exec. Sec., 206 SCRA 290 1-f. Malayan vs. CA, 213 SCRA 640 6. LACSON-MAGALLANES VS. PANO, 21 SCRA 895 Sec. 10. The President shall have control of the ministries. (1973 Constitution, Art. VII) Control means "the power of an officer to alter or modify or nullify, or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." (Hebron vs. Reyes, 104 Phil. 175) The President can, by virtue of his power of control, review, modify, alter or nullify any action, or decision of his subordinate in the executive departments, bureaus or offices under him. (Oliveros-Torre vs. Bayot, 58 SCRA 272; Ang-Angco vs. Castillo, et al., 118 Phil. 1468). He can exercise this power motu proprio without need of any appeal from any party. (Oliveros-Torre vs. Bayot, supra). The President is not expected to perform in person an the multifarious executive and administrative functions. The Office of the Executive Secretary is an auxillary unit which assists the President. Under our constitutional set-up, the Executive Secretary acts for and in behalf of the President: and by authority of the President, he has undisputed jurisdiction to affirm, modify, or even reverse any order of the Secretary of Natural Resources and other Cabinet Secretaries. Where the Executive Secretary acts "by authority of the President" his decision is that of the President. (Lacson-Magallanes Co., Inc. vs. Pano, 21 SCRA 895). 3) 4) 5) 6) 7) 8)

LACSON VS. ROQUE, 92 Phil. 456 VILLALUZ VS. ZALDIVAR, 15 SCRA 710 VILLENA VS. SECRETARY OF INTERIOR, 67 Phil. 451 ALAJAR VS. ALBA, 100 Phil. 683 FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757 OLIVEROS TORRE VS. BAYOT, 58 SCRA 272

c. What is the doctrine of Qualified Political agency? (see the separate opinion of Former Chief Justice FERNANDO in the LACSON- MAGALLANES VS. PANO CASE) 199

200 d. Powers which must be exercised personally by the President and could and could not be delegated to any cabinet member? Doctrine of qualified political agency; personality to sue; when the said doctrine does not apply CONSTANTINO and the FREEDOM FROM DEBT COALITION VS. CUISIA, et al., 472 SCRA 505 Tinga, J. F a c t s: The petition seeks to stop the respondents from executing additional debtrelief contracts or foreign borrowings in connection with the Philippine Comprehensive Financing Program for 1992 and to compel the Secretary of Justice to institute criminal and administrative cases against respondents. The respondents negotiated with the foreign commercial bank creditors a multi-option financing package in connection with the country’s foreign debt. This includes a cash buyback of portions of the Philippine foreign debt at a discount. The second option allows creditors to convert existing Philippine debt instruments into bonds or securities. Petitioners characterize the Financing Program as beyond the powers of the President under Section 20, Article VII of the Constitution. I s s u e s: 1. Do the petitioners have the personality to sue? 2. May the respondents contract and guarantee foreign loans on behalf of the Republic of the Philippines? Stated otherwise, may the President delegate such power to her subordinates? H e l d: 1. The petitioners as tax payers have the personality to sue. They are suing as citizens of the Philippines and a s taxpayers. The recent trend on locus standi has veered towards a liberal treatment in taxpayer’s suits. In Tatad vs. Garcia, Jr. [243 SCRA 436] the supreme Court held that taxpayers are allowed to question contracts entered into by the national government or government owned and controlled corporations ALLEGEDLY IN CONTRAVENTION OF LAW. 2. The petitioners claim that the President “alone and personally” can validly bind the country in contracting foreign debt under Section 20 , Article VII of the Constitution. The contention is without merit. The Secretary of Finance, as alter ego of the President regarding the “sound and efficient management of the financial resources of the government, has the power to implement the policy which was publicly expressed by the president herself. This is in connection with the doctrine of qualified political agency. While there are instances where the President must act personally and not through his secretaries like the suspension of the privilege of habeas corpus, proclamation of martial law or pardoning power [Villena vs. Secretary of Interior, 67 Phil. 451], negotiation with foreign creditors may be done by the Secretary of Finance or the Governor of Central Bank. The petition was therefore dismissed. 8. Section 18. The President shall be the commander-in-chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out 200

201 such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within 48 hours from the proclamation of martial law or suspension of the privilege of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress voting jointly, , by a vote of at least a majority of all its members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, otherwise, he shall be released. a. Take special notice of the grounds for the suspension of the privilege of the writ of Habeas Corpus declaration of Martial Law. b. Compare it with the provisions of the 1935 and 1973 Constitution on this subject. What are the restrictions imposed on the President in the exercise of such emergency powers? What are the effects of exercises of emergency powers to the judicial system? Commander-in-chief provision; Legal standing to question a presidential proclamation; moot and academic cases when courts still has to decide it; state of rebellion and state of national emergency distinguished PROF. RANDOLF S. DAVID*, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG VS. GLORIA MACAPAGALARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE **

Consolidated with six (6) other Petitions

201

202 SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, NIÑEZ CACHO-OLIVARES PUBLISHING CO., INC.,

AND G.R.

TRIBUNE No.

171396 May 3, 2006 - versus HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, SANDOVAL-GUTIERREZ, J.: The cases: These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. The Facts: On February 24, 2006, as the nation celebrated the 20 th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. She cited the following facts as bases: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad 202

203 front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering the growth of the economy and sabotaging the people’s confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; On the same day, the President issued G. O. No. 5 implementing PP 1017, thus: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State – and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the people’s confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State;

203

204 WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGALARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGALARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20 th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that “warrantless arrests and take-over of facilities, including media, can already be implemented.”364

364

Petition in G.R. No. 171396, p. 5.

204

205 Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.365 According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.366 A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is “meant to show a ‘strong presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing down this government.” The PNP warned that it would take over any media organization that would not follow “standards set by the government during the state of national emergency.” Director General Lomibao stated that “if they do not follow the standards – and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’” National Telecommunications’ Commissioner Ronald Solis urged television and radio networks to “cooperate” with the government for the duration of the state of national emergency. He asked for “balanced reporting” from broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.367 Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed 365

Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were broadcast as “breaking news” by the major television stations of this country.

366

Petition in G.R. No. 171400, p. 11.

367

Ibid.

205

206 from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite. Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the “Batasan 5” decided to stay indefinitely. Hence, these Petitions. I s s u e s: A PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whether the Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge 1

PROCEDURAL I

Moot and Academic Principle

Courts may exercise the power of judicial review only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of unconstitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself. Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is “definite and concrete, touching the legal relations of parties having adverse legal interest;” a real and substantial controversy admitting of specific relief. The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered “moot and academic” by President Arroyo’s issuance of PP 1021. Such contention lacks merit. 206

207 A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, 368 so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case369 or dismiss it on ground of mootness. The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that “an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.” The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution (Province of Batangas vs. Romulo, .R. No. 152774, May 27, 2004, 429 SCRA 736). second, the exceptional character of the situation and the paramount public interest is involved (Lacson vs. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756); third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public (Province of Batangas vs. Romulo); and fourth, the case is capable of repetition yet evading review (Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. ) All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the public’s interest, involving as they do the people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. 370 And lastly, respondents’ contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as “a right of appearance in a court of justice on a given question.”371 In private suits, standing is governed by the “real-parties-in 368

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

369

Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra. 370 Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438. 371

Black’s Law Dictionary, 6th Ed. 1991, p. 941.

207

208 interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that “every action must be prosecuted or defended in the name of the real party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.”372 Succinctly put, the plaintiff’s standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right” in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a “stranger,” or in the category of a “citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a “citizen” or “taxpayer. Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was first laid down in Beauchamp v. Silk,373 where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:374 “In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan375 held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.” However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent “direct injury” test in Ex Parte Levitt,376 later reaffirmed in Tileston v. Ullman.377 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera,378 it held that the person who impugns the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,379 Manila Race Horse Trainers’ Association v. De la Fuente,380 Pascual v. Secretary of Public Works381 and AntiChinese League of the Philippines v. Felix.382 However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done 372 373 374 375 376 377 378 379 380 381 382

Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). 275 Ky 91, 120 SW2d 765 (1938). 19 Wend. 56 (1837). 232 NC 48, 59 SE2d 359 (1950). 302 U.S. 633. 318 U.S. 446. 65 Phil. 56 (1937). G.R. No. 117, November 7, 1945 (Unreported). G.R. No. 2947, January 11, 1959 (Unreported). 110 Phil. 331 (1960). 77 Phil. 1012 (1947).

208

209 in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,383 where the “transcendental importance” of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,384 this Court resolved to pass upon the issues raised due to the “far-reaching implications” of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this 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.385 Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of “transcendental importance.” Pertinent are the following cases: (1) Chavez v. Public Estates Authority,386 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora,387 wherein the Court held that “given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review” of the Visiting Forces Agreement; (3) Lim v. Executive Secretary,388 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that “Balikatan 02-01” involves the exercise of Congress’ taxing or spending powers, it reiterated its ruling in Bagong 383

84 Phil. 368 (1949) The Court held: “Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.” 384

L-No. 40004, January 31, 1975, 62 SCRA 275. 385

Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law; Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses the right. Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers’ lack of personality to sue may be disregarded in determining the validity of the VAT law; Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved under the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it. Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a “proper party,” nonetheless, it has the discretion to waive the requirement, in determining the validity of the implementation of the CARP. Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain taxpayer’s suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised. Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money; Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where serious constitutional questions are involved, the “transcendental importance” to the public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities of procedures; De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi. 386

387 388

G.R. No. 133250, July 9, 2002, 384 SCRA 152. G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449. G.R. No. 151445, April 11, 2002, 380 SCRA 739.

209

210 Alyansang Makabayan v. Zamora,389 that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed. By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: 1

the cases involve constitutional issues;

2

for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

3

for voters, there must be a showing of obvious interest in the validity of the election law in question;

4

for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

5

for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing. In Kilosbayan, Inc. v. Morato,390 the Court ruled that the status of Kilosbayan as a people’s organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,391 the Court reiterated the “direct injury” test with respect to concerned citizens’ cases involving constitutional issues. It held that “there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act.” In Lacson v. Perez,392 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,393 the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the President’s declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. 389

390 391 392 393

Supra.

G.R. No. 118910, November 16, 1995, 250 SCRA 130. G.R. No. 132922, April 21, 1998, 289 SCRA 337. G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756. G.R. No. 159085, February 3, 2004, 421 SCRA 656.

210

211 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged “direct injury” resulting from “illegal arrest” and “unlawful search” committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing. It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the “liberality doctrine” on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the “transcendental importance” doctrine, a relaxation of the standing requirements for the petitioners in the “PP 1017 cases.” This Court holds that all the petitioners herein have locus standi. Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency,394 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people395 but he may be removed from office only in the mode provided by law and that is by impeachment.396 B. SUBSTANTIVE I. Review of Factual Bases

The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker and Montenegro v. Castaneda to the volatile era of Lansang v. Garcia, Aquino, Jr. v. Enrile, and Garcia-Padilla v. Enrile. The tug-of-war always cuts across the line defining “political questions,” particularly those questions “in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.” Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances, “under which the President is supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn, constitutionally supreme.” In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile. There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that “in 394

From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302). 395

Section 1, Article XI of the Constitution provides: 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. 396 Ibid., Sec. 2.

211

212 times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God.” The Integrated Bar of the Philippines v. Zamora -- a recent case most pertinent to these cases at bar -- echoed a principle similar to Lansang. While the Court considered the President’s “calling-out” power as a discretionary power solely vested in his wisdom, it stressed that “this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion.” This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only “to settle actual controversies involving rights which are legally demandable and enforceable,” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government. It speaks of judicial prerogative not only in terms of power but also of duty. As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that “judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct,” but that “the President did not act arbitrarily.” Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that “it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis” and that if he fails, by way of proof, to support his assertion, then “this Court cannot undertake an independent investigation beyond the pleadings.” Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty. II. Constitutionality of PP 1017 and G.O. No. 5 The operative portion of PP 1017 may be divided into three important provisions, thus: First provision: “by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion” 212

213

Second provision: “and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction;” Third provision: “as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency.” First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary (G.R. No. 159085, February 3, 2004, 421 SCRA 656) this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. grants the President, as Commander-in-Chief, a “sequence” of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,397 the Court ruled that the only criterion for the exercise of the calling-out power is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.” Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the President’s authority to declare a “state of rebellion” (in Sanlakas) and the authority 397

Supra.

213

214 to proclaim a state of national emergency. While President Arroyo’s authority to declare a “state of rebellion” emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: SEC. 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. President Arroyo’s declaration of a “state of rebellion” was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Second Provision: “Take Care” Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads: SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. As the Executive in whom the executive power is vested, 398 the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, “execute its laws.”399 In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country,400 including the Philippine National Police401 under the Department of Interior and Local Government.402 Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause “to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.” 398

399 400

Section 1, Article VII of the Constitution. Section 5, Article VII of the Constitution. Section 18, Article VII of the Constitution.

401

Section 6, Article XVI of the Constitution.

402

See Republic Act No. 6975.

214

215

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted403 from Former President Marcos’ Proclamation No. 1081, which partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: “to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.” Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.” Is it within the domain of President Arroyo to promulgate “decrees”? PP 1017 states in part: “to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction.” President Arroyo’s ordinance power is limited to executive orders, proclamations, administrative orders, etc. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.404 This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to “laws,” she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. Third Provision: Power to Take Over

403

Ironically, even the 7th Whereas Clause of PP 1017 which states that “Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government” replicates more closely Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of the 1987 Constitution which provides that, “[t[he prime duty of the Government is to serve and protect the people.”

404

Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.

215

216 The pertinent provision of PP 1017 states: x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency. The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience “to all the laws and to all decrees x x x” but also to act pursuant to the provision of Section 17, Article XII which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the “martial law” thinking of the 1971 Constitutional Convention. 405 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over “the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency.” Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers. A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. Section 23, Article VI of the Constitution reads: SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

405

Section 17, Article XIV of the 1973 Constitution reads: “In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.”

216

217 It may be pointed out that the second paragraph of the above provision refers not only to war but also to “other national emergency.” If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a “state of national emergency” pursuant to Section 18, Article VII (callingout power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a “state of national emergency.” The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other.406 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.407 Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. 406

Antieau, Constitutional Construction, 1982, p.21.

407

Cruz, Philippine Political Law, 1998, p. 94.

217

218 WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL. 1) Read: 2) The Habeas Corpus Cases a. BARCELON VS. BAKER, 5 Phil. 87 (1905) b. MONTENEGRO VS. CASTANEDA, 91 Phil. 882 (1952) c. LANSANG VS. GARCIA, 42 SCRA 448 d. GARCIA-PADILLA VS. PONCE ENRILE, 121 SCRA 472 April 20, 1983 e. MORALES VS. JUAN PONCE ENRILE, 121 SCRA 472 April 26, 1983 f. OLAGUER VS. MILITARY COMMISSION, G.R. No. 54558, May 22, 1987 g. ROLANDO ABADILLA VS. GEN. RAMOS, 156 SCRA 97 h. JUAN PONCE ENRILE VS. JUDGE SALAZAR, June 5, 1990 i. People vs. Donato, 198 SCRA 120 2) The Martial Law cases a. AQUINO VS. ENRILE, 59 SCRA 183 b. AQUINO VS. MILITARY COMMISSION, 63 SCRA 546 c. GUMAUA VS. ESPINO, 96 SCRA 402 d. LEGASPI VS. MINISTER 115 SCRA 418 (on the possible options available to the president in case of lawful violence) 9. Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of Congress. a. Define: reprieve, commutation, pardon, amnesty b. See Article IX-C, Section 5 of the 1987 Constitution and Article 5 of the Revised Penal (Act 386) Section 5, Art. IX-C. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the Commission. c. Read: 1) BARRIOQUINTO VS. FERNANDEZ, 82 Phil. 642 218

219 Amnesty must be distinguished from pardon. [1] Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. [2] Pardon is granted to one after conviction (of ordinary crimes) ; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. [3] Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does ""nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" article 36, Revised Penal Code). while amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (section 10[6], Article VII, Philippine Constitution; State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex parte Law, 35 GA., 285, 296; State ex rel AnheuserBusch Brewing Ass'n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61; Burdick vs United States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59 Law. ed., 476.) [4] Pardon is complete with the act of the President while Amnesty is valid only with the concurrence of the majority of the members of all the members of Congress. 2) VERA VS. PEOPLE, 7 SCRA 152 Before one may validly apply for executive clemency (pardon or amnesty) he MUST ADMIT HAVING COMMITTED THE ACTS WHICH RESULTED IN HIS IMPRISONMENT. 3) 4) 5) 6) 7) 8)

CRISTOBAL VS. LABRADOR, 71 Phil. 34 PEOPLE VS. JOSE, 75 Phil. 612 5) PELOBELO VS. PALATINO, 72 Phil. 441 PEOPLE VS. PASILAN, 14 SCRA 694 LEGASPI VS. MINISTER, 115 SCRA 418 MONSANTO VS. FACTORAN,February, 1989 The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a New appointment. In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. 219

220

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984. By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. 2 The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held: We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite. n fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. ... Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2). IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. 220

221

Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987. Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of the principal penalty. Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last during the term of the sentence. Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon. The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon. The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency 221

222 could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. In Pelobello v. Palatino, We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of criminal conviction. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. Such generalities have not been universally accepted, recognized or approved. The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the 222

223 law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction." A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required." This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation . 9. Lllamas vs. Exec. Sec. Orbos, Oct. 15, 1991 The case before Us calls for a determination of whether or not the President of the Philippines has the power to grant executive clemency in administrative cases. In connection therewith, two important questions are also put in issue, namely, whether or not the grant of executive clemency and the reason therefore, are political questions beyond judicial review, and whether or not the questioned act was characterized by grave abuse of discretion amounting to lack of jurisdiction. Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private respondent Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition and is being impleaded herein in that official capacity for having issued, by authority of the President, the assailed Resolution granting executive clemency to respondent governor. By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly without any notification made to the petitioner. Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically on the ground th executive clemency could be granted by the President only in criminal cases as there is nothing in the statute books or even in the Constitution which allows the grant thereof in administrative cases. Petitioner also contends that since respondent governor refused to recognize his suspension (having reassumed the governorship in gross defiance of the suspension order), executive clemency cannot apply to him; that his rights to due process were violated because the grant of executive clemency was so sudden that he was not even notified thereof; and that despite a finding by public respondent of impropriety in the loan transaction entered into by respondent governor, the former failed to justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the executive 223

224 clemency granted by public respondent was "the product of a hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly no real petition for the grant of executive clemency filed by respondent governor. Batas Pambansa Blg. 337 provides: Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, ... (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense s warrants, or when the continuance in office of the respondent coul influence the witnesses or pose a threat to the safety and integrity the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation the proceedings against him until its termination. (Emphasis supplied) Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a political question which is beyond judicial review. Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review does not constitute a modification or correction of the act of the President, nor does it constitute interference with the functions of the President. In this connection, the case of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote: Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers. As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts. (Willoughby on the Constitution of the United States, Vol. 3, p. 1326).

224

225 In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to decide whether under the Constitution the President may grant executive clemency in administrative cases. We must not overlook the fact that the exercise by the President of her power of executive clemency is subject to constitutional limitations. We will merely check whether the particular measure in question has been in accordance with law. In so doing, We will not concern ourselves with the reasons or motives which actuate the President as such is clearly beyond our power of judicial review. Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article VII, Section 19 of the Constitution which reads: Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. (Emphasis supplied) According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases, and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however, describes in his very own words, respondent governor as one who has been "convicted in an administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled: For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ... criminally. In either case, his culpability must be established ... Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses. In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative cases. d. Is breach of the condition of pardon subject to judicial review? Read: TORRES VS. GONZALES, 152 SCRA 272

225

226 On 18 April 1979, a conditional pardon was granted to the petitioner by the President of the Philippines on condition that petitioner would "not again violate any of the penal laws of the Philippines. Should this condition be violated, he will be proceeded against in the manner prescribed by law." Petitioner accepted the conditional pardon and was consequently released from confinement. On 21 May 1986, the Board of Pardons and Parole (the "Board") resolved to recommend to the President the cancellation of the conditional pardon granted to the petitioner. In making its recommendation to the President, the Board relied upon the decisions of this Court in Tesoro vs. Director of Prisons (68 Phil. 154 [1939]) and Espuelas vs. Provincial Warden of Bohol (108 Phil. 356 [1960]). The evidence before the Board showed that on 22 March 1982 and 24 June 1982, petitioner had been charged with twenty counts of estafa in Criminal Cases Nos. Q-19672 and Q-20756, which cases were then (on 21 May 1986) pending trial before the Regional Trial Court of Rizal (Quezon City). The record before the Board also showed that on 26 June 1985, petitioner had been convicted by the Regional Trial Court of Rizal (Quezon City) of the crime of sedition in Criminal Case No. Q-22926; this conviction was then pending appeal before the Intermediate Appellate Court. The Board also had before it a letter report dated 14 January 1986 from the National Bureau of Investigation ("NBI"), addressed to the Board, on the petitioner. Per this letter, the records of the NBI showed that a long list of charges had been brought against the petitioner during the last twenty years for a wide assortment of crimes including estafa, other forms of swindling, grave threats, grave coercion, illegal possession of firearms, ammunition and explosives, malicious mischief, violation of Batas Pambansa Blg. 22, and violation of Presidential Decree No. 772 (interfering with police functions). Some of these charges were Identified in the NBI report as having been dismissed. The NBI report did not purport to be a status report on each of the charges there listed and Identified. On 8 September 1986, the President cancelled the conditional pardon of the petitioner. On 10 October 1986, the respondent Minister of Justice issued "by authority of the President" an Order of Arrest and Recommitment against petitioner. The petitioner was accordingly arrested and confined in Muntinlupa to serve the unexpired portion of his sentence. Petitioner now impugns the validity of the Order of Arrest and Recommitment. He claims that he did not violate his conditional pardon since he has not been convicted by final judgment of the twenty (20) counts of estafa charged in Criminal Cases Nos. Q-19672 and Q-20756 nor of the crime of sedition in Criminal Case No. Q-22926. 3 Petitioner also contends that he was not given an opportunity to be heard before he was arrested and recommitted to prison, and accordingly claims he has been deprived of his rights under the due process clause of the Constitution. The issue that confronts us therefore is whether or not conviction of a crime by final judgment of a court is necessary before the petitioner can be validly rearrested and recommitted for violation of the terms of his conditional pardon and accordingly to serve the balance of his original sentence. This issue is not novel. It has been raised before this Court three times in the past. This Court was first faced with this issue in Tesoro Director of Prison. Tesoro, who had been convicted of the crime of falsification of public documents, was granted a parole by the then Governor-General. One of the conditions of the parole required the parolee "not [to] commit any other crime and [to] conduct himself in an orderly manner." Two years after the grant of parole, Tesoro was charged before the 226

227 Justice of the Peace Court of San Juan, Rizal, with the crime of adultery said to have been committed with the wife of Tesoro's brother-in-law. The fiscal filed with the Court of First Instance the corresponding information which, however, was dismissed for non-appearance of the complainant. The complainant then went before the Board of Indeterminate Sentence and charged Tesoro with violation of the conditions of his parole. After investigation by the parole officer, and on the basis of his report, the Board recommended to the President of the Philippines the arrest and recommitment of the petitioner. Tesoro contended, among other things, that a "judicial pronouncement to the effect that he has committed a crime" is necessary before he could properly be adjudged as having violated his conditional parole. Addressing this point, this Court, speaking through then Mr. Justice Moran, held that the determination of whether the conditions of Tesoro's parole had been breached rested exclusively in the sound judgment of the GovernorGeneral and that such determination would not be reviewed by the courts. As Tesoro had consented to place his liberty on parole upon the judgment of the power that had granted it, we held that "he [could not] invoke the aid of the courts, however erroneous the findings may be upon which his recommitment was ordered." Thus, this Court held that by accepting the terms under which the parole had been granted, Tesoro had in effect agreed that the Governor-General's determination (rather than that of the regular courts of law) that he had breached one of the conditions of his parole by committing adultery while he was conditionally at liberty, was binding and conclusive upon him. In Sales vs. Director of Prisons, the petitioner had been convicted of the crime of frustrated murder. After serving a little more than two years of his sentence, he was given a conditional pardon by the President of the Philippines, "the condition being that he shall not again violate any of the penal laws of the Philippines and that, should this condition be violated, he shall be proceeded against in the manner prescribed by law." 8 Eight years after the grant of his conditional pardon, Sales was convicted of estafa and sentenced to three months and eleven days of arresto mayor. He was thereupon recommitted to prison to serve the unexpired portion of his original sentence. Sales raised before this Court two principal contentions. Firstly, he argued that Section 64 (i) of the Revised Administrative Code had been repealed by Article 159 of the Revised Penal Code. He contended, secondly, that Section 64 (i) was in any case repugnant to the due process clause of the Constitution (Article III [1], 1935 Constitution). This Court, through Mr. Justice Ozaeta speaking for the majority, rejected both contentions of Sales. In Espuelas vs. Provincial Warden of Bohol, the petitioner had been convicted of the crime of inciting to sedition. While serving his sentence, he was granted by the President a conditional pardon "on condition that he shall not again violate any of the penal laws of the Philippines." Espuelas accepted the conditional pardon and was released from confinement. Sometime thereafter, he was convicted by the Justice of the Peace Court in Tagbilaran, Bohol, of the crime of usurpation of authority. He appealed to the Court of First Instance. Upon motion of the provincial fiscal, the Court of First Instance dismissed the case provisionally, an important prosecution witness not having been available on the day set for trial. A few months later, upon recommendation of the Board of Pardons and Parole, the President ordered his recommitment to prison to serve the unexpired period of his original sentence. The status of our case law on the matter under consideration may be summed up in the following propositions:

227

228 1. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. 2. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, may be either a purely executive act, not subject to judicial scrutiny under Section 64 (i) of the Revised Administrative Code; or it may be a judicial act consisting of trial for and conviction of violation of a conditional pardon under Article 159 of the Revised Penal Code. Where the President opts to proceed under Section 64 (i) of the Revised Administrative Code, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. 3. Because due process is not semper et unique judicial process, and because the conditionally pardoned convict had already been accorded judicial due process in his trial and conviction for the offense for which he was conditionally pardoned, Section 64 (i) of the Revised Administrative Code is not afflicted with a constitutional vice. CRUZ, J., dissenting: The petitioner challenges his recommitment, claiming he has not violated the condition of his pardon "that he shall not again violate any of the penal laws of the Philippines." The government bases its stand on the case of Espuelas v. Provincial Warden of Bohol, 108 Phil. 353, where it was held, in connection with a similar condition, that mere commission of a crime, as determined by the President, was sufficient to justify recommitment. Conviction was considered not necessary. I would grant the petition. There is no question that the petitioner is facing a long list of criminal charges, but that certainly is not the issue. The point is that, as many as such charges may be, none of them so far has resulted in a final conviction, without which he cannot be recommitted under the condition of his pardon. Mere accusation is not synonymous with guilt. (People v. Dramayo, 42 SCRA 59). A prima facie case only justifies the filing of the corresponding information, but proof beyond reasonable doubt is still necessary for conviction. Manifestly, an allegation merely accuses the defendant of a crime: it is the conviction that makes him a criminal. In other words, a person is considered to have committed a crime only if he is convicted thereof, and this is done not by his accuser but by the judge. That this conviction must be pronounced by the judge and no other is too obvious a proposition to be disputed. The executive can only allege the commission of crime and thereafter try to prove it through indubitable evidence. If the prosecution succeeds, the court will then affirm the allegation of commission in a judgment of conviction. e. Amnesty to rebels Read: Proclamation No. 80, February 28, 1987 10. Sections 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided for by law. The Monetary Board shall, within 30 days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for 228

229 loans to be contracted or guaranteed by the government or government owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided for by law. Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the members of the Senate. (NOTE: Please see Section 25, Art. 18. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the USA concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.) Is the visiting forces agreement between the Philippines and the UNITED STATES void and unconstitutional? Is it a self-executing treaty that can be implemented without ratification by the US Senate though ratified by the Philippine Senate? SUZETTE NICOLAS y SOMBILON, vs. ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH, G.R. No. 175888, February 11, 2009 AZCUNA, J.: The facts are not disputed. Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as follows: The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex “A,” committed as follows: “That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-named accused’s (sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one another, with lewd design and by means of force, 229

230 threat and intimidation, with abuse of superior strength and taking advantage of the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage and prejudice. CONTRARY TO LAW.”408[1] Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith pending the proceedings. During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of Makati for security reasons, the United States Government faithfully complied with its undertaking to bring defendant Smith to the trial court every time his presence was required. On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty, thus: WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the crime charged. The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together with the accessory penalties provided for under Article 41 of the same Code. Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail. Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral damages. As a result, the Makati court ordered Smith detained at the Makati jail until further orders. 408[1]

Annex “B” of RTC Decision, CA rollo, p. 45.

230

231 On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local Government, and brought to a facility for detention under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19, 2006 which states: The Government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila. (Sgd.) KRISTIE A. KENNEY ROMULO Representative of the United States Republic of America DATE: 2006__

12-19-06

(Sgd.) ALBERTO G. Representative of the of the Philippines DATE:

December 19,

and the Romulo-Kenney Agreement of December 22, 2006 which states: The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA. The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows: WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having become moot.409[3] Hence, the present actions. HELD: Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all, the VFA is void and unconstitutional. This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This was in Bayan v. Zamora,410[4] brought by Bayan, one of petitioners in the present cases. Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-àvis all the parties, the reversal of the previous ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of the Republic, as well as a specific mandate of the Constitution. 409[3] 410[4]

Rollo, pp. 90-127. G.R. No. 138570, October 10, 2000, 342 SCRA 449.

231

232

The provision of the Constitution is Art. XVIII, Sec. 25 which states: Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. The reason for this provision lies in history and the Philippine experience in regard to the United States military bases in the country. It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself. This is noteworthy, because what this means is that Clark and Subic and the other places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were excluded from the cession and retained by the US. Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate. Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to the Philippines. To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution. The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State. Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed “under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State.” This Court finds that it is, for two reasons. First, as held in Bayan v. Zamora,411[5] the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international 411[5]

Supra, note 4.

232

233 agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-called Case–Zablocki Act, within sixty days from ratification.412[6] The second reason has to do with the relation between the VFA and the RPUS Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate. The RP-US Mutual Defense Treaty states:413[7] MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951. The Parties of this Treaty Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments, and desiring to strengthen the fabric of peace in the Pacific area. Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war. Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific area. Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific area. Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or diminishing any existing agreements or understandings between the Republic of the Philippines and the United States of America. Have agreed as follows: ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relation from the threat or use of 412[6]

The Case-Zablocki Act, 1 U.S.C. 112b (a) (1976 ed., Supp IV). See also Weinberger v. Rossi, 456 U.S. 25 (1982), in which the U.S. Supreme Court sustained recognition as a “treaty” of agreements not concurred in by the U.S. Senate. 413[7]

The RP-US Mutual Defense Treaty was signed in Washington, D.C. on August 30, 1951. Its ratification was advised by the US Senate on March 20, 1952, and the US President ratified the Treaty on April 15, 1952. The Treaty was concurred in by the RP Senate, S.R. No. 84, May 12, 1952. The Philippine instrument of ratification was signed by the RP President on August 27, 1952. The Agreement entered into force on August 27, 1952 upon the exchange of ratification between the Parties. This Agreement is published in II DFA TS No. 1, p. 13; 177 UNTS, p. 133; 3 UST 3847-3952. The RP Presidential proclamation of the Agreement, Proc. No. 341, S. 1952, is published in 48 O.G. 4224 (Aug. 1952).

233

234 force in any manner inconsistent with the purposes of the United Nations. ARTICLE II. In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by selfhelp and mutual aid will maintain and develop their individual and collective capacity to resist armed attack. ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific. ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific. ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security. ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations of America in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Manila. ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other party. IN WITHNESS WHEREOF Plenipotentiaries have signed this Treaty.

the

undersigned

DONE in duplicate at Washington this thirtieth day of August, 1951. For the Republic of the Philippines: (Sgd.)

CARLOS

P.

ROMULO (Sgd.) JOAQUIN M. ELIZALDE (Sgd.)

VICENTE

J.

FRANCISCO 234

235 (Sgd.)

DIOSDADO

(Sgd.)

DEAN

MACAPAGAL For the United States of America: ACHESON (Sgd.) JOHN FOSTER DULLES (Sgd.)

TOM

(Sgd.)

ALEXANDER

CONNALLY WILEY

414[8]

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble of the VFA states: The Government of the United States of America and the Government of the Republic of the Philippines, Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to strengthen international and regional security in the Pacific area; Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines; Considering that cooperation between the United States and the Republic of the Philippines promotes their common security interests; Recognizing the desirability of defining the treatment of United States personnel visiting the Republic of the Philippines; Have agreed as follows:415[9] Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.416[10] The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence. 414[8] 415[9]

Emphasis supplied. Emphasis supplied.

416[10]

See Letter of Ambassador Thomas C. Hubbard quoted in Bayan, 342 SCRA 449, 491.

235

236

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions. The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the following rules apply: Article V Criminal Jurisdiction xxx 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.). Again, this Court finds no violation of the Constitution. The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.417[11] The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.418[12] As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. 417[11]

See, the summation of the rule on equal protection in ISAGANI A. CRUZ, CONSTITUTIONAL LAW, pp. 123-139 (2007), and the authorities cited therein. 418[12]

See Dieter Fleck, Ed., The HANDBOOK OF THE LAW OF VISITING FORCES , Oxford: 2001.

236

237

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2). Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA: Article V Criminal Jurisdiction xxx Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be “by Philippine authorities.” Therefore, the Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not “by Philippine authorities.” Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA. Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable. On February 3, 2009, the Court issued a Resolution, thus: “G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President Gloria MacapagalArroyo, et al.). The parties, including the Solicitor General, are required to submit within three (3) days a Comment/Manifestation on the following points: 1

What is the implication on the RP-US Visiting Forces Agreement of the recent US Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the effect that treaty stipulations that are not self-executory can only be enforced pursuant to legislation to carry them into 237

238 effect; and that, while treaties may comprise international commitments, they are not domestic law unless Congress has enacted implementing statutes or the treaty itself conveys an intention that it be “self-executory” and is ratified on these terms? 2

Whether the VFA is enforceable in the US as domestic law, either because it is self-executory or because there exists legislation to implement it.

3

Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the US Senate and, if so, is there proof of the US Senate advice and consent resolution? Peralta, J., no part.”

After deliberation, the Court holds, on these points, as follows: First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial. Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act within 60 days from their ratification be immediately implemented. The parties to these present cases do not question the fact that the VFA has been registered under the Case-Zablocki Act. In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision are not selfexecuting and are not registrable under the Case-Zablocki Act, and thus lack legislative implementing authority. Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 – Part 2, pp. 2594-2595. The framers of the Constitution were aware that the application of international law in domestic courts varies from country to country. As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not. It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to require the other contracting State to convert their system to achieve alignment and parity with ours. It was simply required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes under international law. Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,419[13] an executive agreement is a “treaty” within the meaning of that word in international law and constitutes enforceable domestic law vis-à-vis the United States. Thus, the US Supreme Court in Weinberger enforced the provisions of the executive agreement granting preferential employment to Filipinos in the US Bases here. 419[13]

Supra, Note 6.

238

239

Accordingly, there are three types of treaties in the American system: 1

Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in accordance with Art. II, Sec. 2 of the US Constitution.

2

Executive–Congressional Agreements: These are joint agreements of the President and Congress and need not be submitted to the Senate.

3

Sole Executive Agreements. – These are agreements entered into by the President. They are to be submitted to Congress within sixty (60) days of ratification under the provisions of the Case-Zablocki Act, after which they are recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been given under it and this can only be done through implementing legislation. The VFA itself is another form of implementation of its provisions. WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court. The Court of Appeals is hereby directed to resolve without delay the related matters pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction. Section 22. The President shall submit to the Congress within 30 days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. Section 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. Read: Distinctions between Treaty and executive agreements. 1) GONZALES VS. HECHANOVA, 9 SCRA 280 2) TAN SIN VS. DEPORTATION BOARD, 104 Phil. 868 3) COMMISSIONER OF CUSTOMS VS. EASTERN, 3 SCRA 351 4. Ichong vs. Hernandez, 101 Phil. 1155 11. Under the present Constitution, is the president immune from suit in relation to acts performed by him or by his subordinates by virtue of his specific orders during his tenure considering that the immunity from suit provision under the 1973 Constitution was already deleted? Read: 1) Section 17, Article VII of the 1973 Constitution with the 1984 amendments. 2) HIDALGO VS. MARCOS, 80 SCRA 538 3) CARILLO VS. MARCOS, April 6, 1981 4. MAXIMO SOLIVEN VS. JUDGE MAKASIAR, Nov. 15, 1988 PART VIII 239

240 ARTICLE VIII - THE JUDICIAL DEPARTMENT 1. Section 1. The judicial power shall be vested in one Supreme Court and in such other 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 in excess of jurisdiction on the part of any branch or instrumentality of the government. a. What is judicial power? Read: Badua vs. CBA, February 14, 1991 b. Restrictions to the exercise of judicial power Political question doctrine Read: 1) JAVELLANA VS. EXECUTIVE SECRETARY, 50 SCRA 30 2) DE LA LLANA VS. ALBA, 112 SCRA 294 3) ALMARIO VS. ALBA, 127 SCRA 69 (When the question deals with the necessity, expediency and wisdom of a particuar act, the same is political and not justiciable) 4. Read again ENRILE VS. JUDGE SALAZAR, June 5, 1990 b-1. Definition of political question Read: 1. Sanidad vs. Comelec, 73 SCRA 333 Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, the matter is definitely justiciable or non-political) 2. Javellana vs. Exec. Secretary, 50 SCRA 30 3. Tanada vs. Cuenco, 103 Phil. (Political questions are questions to be answered by the people in their sovereign capacity or in regard to which full discretionary authority is vested to the executive or legislative branch of the government) 4. Gonzales vs. COMELEC, 21 SCRA 774 (When the crux of the problem deals with the validity of an act, it is justiciable) c. Cases on judicial power in general 1) 2) 3) 4) 5) 6)

LOPEZ VS. ROXAS, 17 SCRA 756 SANTIAGO VS. BAUTISTA, 32 SCRA 188 RADIOWEALTH VS. AGRACADA, 86 Phil. 429 NOBLEJAS VS. TEEHANKEE, 23 SCRA 405 LINA VS. PURISIMA, 82 SCRA 244 GARCIA VS. MACARAIG,39 SCRA 106

4. Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members.

240

241 3. Section 3. The judiciary shall enjoy fiscal autonomy. Appropriations for the judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. 4. Section 4. (1) The Supreme Court shall be composed of a Chief Justice and 14 associate justices. It may sit en banc or in its discretion, in divisions of 3, 5 or seven members. Any vacancy shall be filled within 90 days from the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. (3) Cases or matters heard by a divisions hall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least 3 of such members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court en banc or in division may be modified or reversed except by the court sitting en banc. Read: 1) VARGAS VS. RILLORAZA, 80 Phil. 297 2) VIR-JEN SHIPPING VS. NLRC, 125 SCRA 577 3. JANDUSAY VS. CA, 172 SCRA 376 To be decided by the Supreme Court en banc 1. Involving the constitutionality of any law, treaty, etc.; 2. When there is conflict of the decisions of 2 or more divisions of the Supreme Court; 3. When a case is referred to by the division to the banc and the same was accepted by the latter; 4. In death penalty cases; 4. Section 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; (c) All cases in which the jurisdiction of any lower court is in issue; (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher; 241

242 (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed 6 months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading , practice , and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the judiciary in accordance with the civil service law. (READ: Maniago vs. CA, 253 SCRA on the limitation of the Rules…not to diminish, increase or modify substantive rights. a. What is the power of judicial review? What are its requisites? DISOMANGCOP VS. HON. SIMEON DATUMANONG, 444 SCRA 203 Requisites for the exercise of judicial power. The following are the requisites for the exercise of judicial power: a. There must be before the court a case calling for the exercise of judicial review; b. The question before the court must be ripe for judicial adjudication; c. The person challenging the validity of the act must have standing to challenge; d. The question of constitutionality must have been raised at the earliest opportunity; and e. The issue of constitutionality must be the very lis mota of the case. - Distinguish judicial power from judicial review. Read: 1. Fernandez vs. Torres, 209 SCRA 677 1-a. Santos III vs. Northwest Airlines, 210 SCRA 256 1-c) ANGARA VS. ELECTORAL COMMISSION, 63 Phil. 139 2) DUMLAO VS. COMELEC, 95 SCRA 392 3. NEPA VS. ONGPIN, 171 SCRA 657 4. Allied Broadcasting Center vs. Rep., Oct. 18, 1991 5. Lagamy vs. CA, 199 SCRA 501 a-1. Functions of Judicial Review 1) legitimizing function 2) checking function 3) symbolic or educational function Read: 242

243 aa. SALONGA VS. PANO, 134 SCRA 438 bb. JAVIER VS. COMELEC, 144 SCRA 194 b. On personality to sue Is there a difference as to the "personality" requirement if the law being questioned involves disbursement of public funds and on the other hand, if it does not . Standing to question the validity of an Executive Order which does not involve disbursement of public funds; Requisites before the President may issue executive Orders in furtherance of police power. EXECUTIVE SECRETARY, ET AL. VS. SOUTHWING HEAVY INDUSTRIES, 482 SCRA 673 Ynares-Santiago, J On December 12, 2002, President Arroyo issued EO 156 entitled “PROVIDING FOR A COMPREHENSIVE INDUSTRIAL POLICY AND DIRECTIONS FOR THE MOTOR VEHICLE DEVELOPMENT PROGRAM AND ITS IMPLEMENTING GUIDELINES.” Under Section 3.1 of the said EO, THE IMPORTATION INTO THE COUNTRY, INCLUSIVE OF FREEPORT, OF ALL TYPES OF USED MOTOR VEHICLES IS PROHIBITED. The private respondent, which has a business of importing all kinds of used motor vehicles questioned the constitutionality of said EO. I s s u e s: 1 2 3

Does the private respondent have the personality to sue or to question the constitutionality of EO 156? Does the President have the authority to promulgate EO to promote police power like in this case? Is EO 156 constitutional?

Held: 1

2

The private respondent has the personality to sue to question the constitutionality of an administrative issuance because it will sustain a direct injury as a result of its enforcement. Respondents would suffer a direct injury if said EO will be implemented because in its Certificate of Registration , it is allowed import/trade used motor vehicles and spare parts. Clearly, it would suffer prejudice if importation of all motor vehicles, not only used cars will be prohibited. The President is authorized to issue an executive order provided it complies with the following requisites: a. Its promulgation must authorized by the legislature;

be

243

244 b. It must be promulgated in accordance with the prescribed procedure; c. It must be within the scope of the authority given by the legislature; and d. It must be reasonable. There is no question that no less than Art. VI, Section 28 [2] of the Constitution authorizes Congress to in turn authorize the President by law, within specified limits, and subject to such restrictions and limitations, to fix tariff rates, import and export quotas…”. Likewise, the Tariff and Customs Code likewise delegates to the President similar powers. 3. Is the EO prohibiting the importation of all motor vehicles, not only used cars constitutional? In this case, while the first two requisites are present, the 3rd is not. This is so because it is not within the powers of the President to prohibit the importation of other vehicles, not only cars, even in the Freeport Zones like Subic which is allowed by RA 7227. The EO therefore is ultra vires or beyond the limits of the authority conferred on the President because it tries to supplant or modify the Constitution, its enabling statute and other existing laws. The 4th requisite is not also present because the same is unreasonable since it likewise prohibit the entry of used motor vehicles into the Freeport which is owed by law, RA 7227. Read: 1) PASCUAL VS. SEC. OF PUBLIC WORKS, 110 Phil. 331 2) SANIDAD VS. COMELEC, 73 SCRA 333 3) DUMLAO VS. COMELEC, 95 SCRA 392 3-a. Read again NEPA VS. ONGPIN, 171 SCRA 57 4. Kilosbayan vs. Guingona, May 5, 1994 Read this very carefully because it changes the original concept of personality to sue when public funds are involved or not. 2. TATAD VS. GARCIA, April 6, 1995, 243 SCRA 436 (Even though no public funds are involved and that petitioner is not directly injured by the contract, he has the personality to question the same if it involves national interest) 3. BUGNAY CONSTRUCTION VS. LARON, 170 SCRA 240 (If the contract is for local consumption only, and that the petitioner is not directly injured by the said contract which does not involve the disbursement of public funds, the petitioner has no personality to sue) c. May inferior courts also exercise the power of judicial review in the light of the requirement of Section 4(2) of Article VIII? Read: YNOT VS. IAC, March 20, 1987 d. Three views on the effects of declaration of unconstitutionality of a law Read: 1) NORTON VS. SHELBY COUNTY, 118 US 425 2) SHEPPARD VS. BARREN, 194 US 553 3) DE AGBAYANI VS. PNB, 38 SCRA 429 4) REPUBLIC VS. HEREDA, 119 SCRA 411 5) REPUBLIC VS. CFI, 120 SCRA 151 e. Transfer of venue in criminal cases Read: 1) PEOPLE VS. GUTIERREZ, 36 SCRA 172 2) PEOPLE VS. SOLA, 103 SCRA 393 3) PEOPLE VS. PILOTIN, 65 SCRA 635 244

245

f. Rule making power; note the limitations Read: 1) BUSTOS VS. LUCERO, 81 Phil. 648 2) NUNEZ VS. SANDIGANBAYAN, 111 SCRA 433 g. On admission to the bar Read: 1. IN RE CUNANAN, 94 Phil. 534 2. ZALDEVAR VS. GONZALES, Oct. 7, 1988 Re: Indefinite suspension imposed on RAUL GONZALES) g-1. May law students practice law before the courts? Requisites? Read: Circular No. 19, issued by the Supreme Court

on December 19, 1986

h. On the integration of the bar Read:

IN RE EDILLON, 84 SCRA 554

6. Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. Read:

DE GUZMAN VS. PEOPLE, 119 SCRA 337

4. Sections 7. (1) No person shall be appointed member of the Supreme Court or any lower collegiate court unless he is a natural born citizen of the Philippines. A member of the Supreme Court must be at least 40 years of age, and must have been for 15 years or more a judge of a lower court or engaged in the practice of law in the Philippines. (2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar. (3) A member of the judiciary must be a person of proven competence, integrity, probity and independence. Section 8. A judicial and bar Council---composition—Chief Justice, Secretary of Justice, Representative of Congress, Integrated Bar, Professor of Law, retired justice and representative of the private sector.. The regular members---term of 4 years---Commission on Appointments— Sec. 9. The members of the Supreme Court and judges of lower court shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within 90 days from the submission of the list. a. Read: 1. UY vs. Judge Capulong, April 7, 1993 2. Court Administrator vs. Judge Gines b. Read: 245

246 Exec. Order No.216, July 10, 1987, creating the Judicial and Bar council 8. Section 10. The salary of the Chief Justice and the associate justices of the Supreme Court, and the judges of the lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. a. See Sec. 17, Art. XVIII b. Read: 1) NITAFAN VS. COMMISSIONER, 152 SCRA 284 2) PERFECTO VS. MEER, 85 Phil. 552 3) ENDENCIA VS. DAVID, 93 Phil. 696 9. Section 11. The Members of the Supreme Court and judges of the lower court shall hold office during good behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Read:

1) OCAMPO VS. SECRETARY OF JUSTICE, 51 O.G. 147 2) DE LA LLANA VS. ALBA, 112 SCRA 294

10. Section 12. The members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Read: 1) GARCIA VS. MACARAIG, 39 SCRA 106 2) MANILA ELECTRIC VS. PASAY TRANSPORTATION, 57 Phil. 60 3) LOPEZ VS. ROXAS, 17 SCRA 756 4) IN RE: JUDGE RODOLFO MANZANO, October 5, 1988 11. Sections 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a member for the writing o f the opinion o f the court. A certification to this effect signed by the CJ----Any member who took no part or dissented…must state the reason therefor. The same procedure in all lower collegiate courts. Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. Read: 1) AIR FRANCE VS. CARRASCOSO, 18 SCRA 155 2) VDA DE ESPIRITU VS. CFI, 47 SCRA 354 3) BUSCAYNO VS. ENRILE, 102 SCRA 7 4) MANGCA VS. COMELEC, 112 SCRA 273 5) VALLADOLID VS. INCIONG, 121 SCRA 205 6) NAPOLCOM VS. LOOD, 127 SCRA 757 8) NUNAL VS. CA, 169 SCRA 356 9) Mangelen vs. CA, 215 SCRA 230 Requirement that the decision shall state clearly and distinctly state the law and the facts on which it is based. BEDRUZ VS. OFFICE OF THE OMBUDSMAN, 484 SCRA 452 Carpio-Morales, J. A trial court’s omission to specify the offense committed, or the specific provision of the law violated, is not in derogation of the constitutional requirement 246

247 that every decision must clearly and distinctly state the law and the facts on which it was based or the factual and legal bases for the conclusions reached by the trial court as long as the legal basis can be inferred from the discussion in the decision. Further, the requirement that the “decision shall state clearly and distinctly state the law and the facts on which it is based” applies only to a decision of a court of justice covered by Art. VIII of the Constitution], not the Office of the Ombudsman. GERMAN MACHINERIES CORPORATION VS. ENDAYA, 444 SCRA 329 When Section 14, Article VIII of the Constitution shall be complied with by the courts. Section 14, Art. VIII of the Constitution provides that “no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. This constitutional provision applies only to cases submitted for decision, i.e., given due course and after the filing of briefs or memoranda and/or other pleadings, BUT NOT WHERE A RESOLUTION IS ISSUED DENYING DUE COURSE TO THE PETITION AND STATING THE LEGAL BASIS THEREFOR like “the petition raised are factual or there is no reversible error in the respondent’s court decision”, there is sufficient compliance with the constitutional requirement. In this case , the Court of Appeals dismissed the Petition for Certiorari filed by the petitioner on the grounds that the factual issues had already been passed upon by the NLRC, and since its factual findings are in agreement with that of the Labor Arbiter, the same are binding and conclusive upon the Court of Appeals. This complies with the constitutional requirement under Section 14, Art. VIII of the Constitution 12. Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within 24 months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, 12 months for all lower collegiate courts, and 3 months for all other lower courts. (2) A case shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself. (4) Even after the lapse----the court shall still decide without further delay. Section 16. The Supreme Court shall, within 30 days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the judiciary. Read: 1) CORPUS VS. CA 98 SCRA 424 2) MALACORA VS. CA, 117 SCRA 435 3) MARCELINO VS. CRUZ, 121 SCRA 51 4) DE ROMA VS. CA, 152 SCRA 205 5) Administrative Circular No. 1, issued by the Supreme Court thru CHIEF JUSTICE CLAUDIO TEEHANKEE on January 28, 1988, particularly par. 11 thereof. 13. Section 16 247

248 PART IX ARTICLE IX - CONSTITUTIONAL COMMISSIONS 1. A & B - Sections 1-8 Section 7. Each Commission shall decide by a majority vote of all its members any case brought before it…Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each commission may be brought to the SC on Certiorari by the aggrieved party within 30 days from receipt thereof. NOTE: Section 1, Rule 43 allows the Court of Appeals to have appellate jurisdiction over decisions of the CSC in accordance with RA 7902) Section 2, Article IX-B. The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government owned and controlled corporations WITH ORIGINAL CHARTERS. [2] Appointments in the CS shall be made only according to merit and fitness to be determined as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination. [5] The right to self-organization shall not be denied to government employees. Policy determining is one charged with laying down of principal or fundamental guidelines or rules, such as that head of a department. Primarily confidential position is one denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of the personal trust on confidential matters of the state (Example: Chief Legal Counsel of the PNB, Besa vs. PNB, 33 SCRA 330) Highly technical position requires the appointee thereto to possess technical skill or training in the supreme or superior degree. Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the government or any government owned or controlled corporations or any of their subsidiaries. a. Government and controlled corporations Read: These cases were decided under the 1973 constitution where it was held that employees of government owned and controlled corporations, with or without charters are within the jurisdiction of the Civil Service Commission. Under the 1987 Constitution, there is now a distinction and only those with original charters shall be under the CSC while those created under the Corporation Code are not. 1) 2) 3) 4)

NHC VS. JUCO, 134 SCRA 172 MWSS VS. HERNANDEZ, 143 SCRA 602 QUIMPO VS. TANODBAYAN, December 2, 1986, PAL VS. CFI, January 8, 1987

146 SCRA

b. Checking function of the CSC Read: 248

249 1) 2) 3) 4) 5) 6)

DE LOS SANTOS VS. MALLARE, 87 Phil. 289 MEDALLA VS. SAYO, 103 SCRA 587 MATURAN VS. MAGLARA, 113 SCRA 268 DE GUZMAN VS. SUBIDO, 120 SCRA 443 ANZALDO VS. CLAVE, 119 SCRA 353 CENTRAL BANK VS. CSC, April 10, 1989

b-1. Security of Tenure 1. Alim vs. CSC, December 2, 1991 2. Marohombsar vs. Alonto, February 25, 1991 b-2. Power of the CSC to change appointee selected by Head of Office 1. Panis vs. CSC, Feb. 2, 1994 1-b. Home Insurance vs. CSC, March 19, 1993 1-c. Medenilla vs. CSC, February 19, 1991 2. Simpao vs. CSC, November 15, 1990 3. Barrozo vs. CSC and Valentino Julian, June 25, 1991 4. Lapinid vs. CSC, May 14, 1991 5. Santiago vs. CSC, 178 SCRA 733 6. Orbos vs. CSC, Sept. 12, 1990 7. Teologo vs. CSC, Nov. 8, 1990 8. Gaspar vs. CSC, Oct. 18, 1990 9. Luego vs. CSC, 143 SCRA 327 c. Primarily confidential Read: 1) CADIENTE VS. SANTOS, 142 SCRA 280 (Provincial Legal Officer is a primarily confidential office, but not his assistant) 2) SAMSON VS. CA, 145 SCRA( The City Legal officer is a primarily confidential officer) d. Highly technical/policy determining 1) DE LOS SANTOS VS. MALLARE, 87 Phil. 289 2) MEDALLA VS. SAYO, 103 SCRA 587 3) MATURAN VS. MAGLARA, 113 SCRA 268 4) DE GUZMAN VS. SUBIDO, 120 SCRA 443 5) ANZALDO VS. CLAVE, 119 SCRA 353 e. Dismissal for cause Read: 1) ANG-ANGCO VS. CASTILLO, 9 SCRA 619 2) VILLALUZ VS. ZALDIVAR, 15 SCRA 710 3) HERNANDEZ VS. VILLEGAS, 14 SCRA 544 4) BRIONES VS. OSMENA, 104 Phil. 588 5) CORPUZ VS. CUADERNO, 13 SCRA 175 6) CRISTOBAL VS. MELCHOR, 78 SCRA 175 7) INGLES VS. MUTUC, 26 SCRA 171 8) ALCOLALO VS. TANTUICO, 83 SCRA 789 9) ABROT VS. CA, 116 SCRA 468 10) GINSON VS. MUN. OF MURCIA, 158 SCRA 1 11) MARCELINO VS. TANTUICO, July 7, 1986 12) CADIENTE VS. SANTOS, June 11, 1986 f. May gov't. employees form unions for purposes of collective bargaining and to strike against the government? 249

250 Read: 1) ALLIANCE OF GOVT. WORKERS VS. MOLE, 124 SCRA 1 2) Executive Order No. 180 , June 1, 1987 authorizing govt. employees to form unions. 3) SANTOS VS. YATCO, 106 Phil. 745 4) PEOPLE VS. DE VENECIA, 14 SCRA 864 5. SSSEA vs. Court of Appeals, 175 SCRA 686 6. NSC vs. NLRC, 168 SCRA 123 g. May government employees be removed without government reorganization?

cause as a result of a

Read: RA 6656, June 10, 1988 , An act to protect the security of tenure of civil service officers and employees in the implementation of government reorganization. Read also 1) DARIO VS. MISON, August 8, 1989 2) FLOREZA VS. ONGPIN, February 26, 1990 3) MENDOZA VS. QUISUMBING, June 4, 1990 4. DOTC vs. CSC, October 3, 1991 5. Romualdez vs. CSC, August 12, 1993 6. Torio vs. CSC, 209 SCRA 677 ********************************************** COMMISSION ON ELECTIONS 2. C, Section 1…..any appointment for any vacancy shall only be for the unexpired term…In no case shall any member be appointed or designated in a temporary or acting capacity. Section 2. Powers….enforce and administer all laws relative to the conduct of election, plebiscite, initiative, referendum and recall….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 courts of general jurisdiction and elective barangay officials decided by trial courts of limited jurisdiction. a. b. c. d.

Deputize law enforcement agencies, including the ASFP.. Register political parties, except religious groups File complaints for violation of election laws Regulate the enjoyment or utilization of all franchises for the operation of transportation and other public utilities, media of communication..

a. Term of COMELEC Commissioners Read: 1. Brillantes vs. Yorac, Dec. 18, 1991 1-a) NP VS. DE VERA, 35 Phil. 126 2) REPUBLIC VS. IMPERIAL, 96 Phil 770 b. Power to enforce and administer laws relative to the conduct of elections. Read: 1) TICZON VS. COMELEC, 103 SCRA 671 2) SANCHEZ VS. BILIWANG, 114 SCRA 454 2) SANCHEZ VS. BILIWANG, 114 SCRA 454 b-1. Powers of the COMELEC 1. PANGILINAN VS. COMELEC, NOVEMBER 18, 1993 2. NPC VS. COMELEC, 207 SCRA 1 250

251 3. Labo vs. Comelec, 211 SCRA 297 c. Sole judge of all election contests Read: 1) GABATAN VS. COMELEC, 122 SCRA 1 2) GAD VS. COMELEC, May 26, 1987 3) UPP-KBL VS. COMELEC, June 4, 1987 4) DEFERIA VS. PARAS, 141 SCRA 518 d. Distinguish referendum from plebiscite Read: SANIDAD VS. COMELEC, 73 SCRA 333 e. Cases to be decided by the COMELEC EN BANC OR IN DIVISION Read: CUA VS. COMELEC, 156 SCRA 582 f. Regulation and control of public utilities like TV stations during the election period Read: UNIDO VS. COMELEC, 104 SCRA 17 g. Election inspectors Read: KBL VS. COMELEC, December 11, 1986 h. Are decisions of the COMELEC appealable? If so, to what court? On what ground or grounds? Read: 1. Galido vs. Comelec, January 18, 1991 2. Garcia vs. De Jesus, March 4, 1992 3. Art. IX-D, Secs. 1-4 Powers of the COA Read: 1. Caltex vs. COA, 208 SCRA 726 2. Bustamante vs. COA, 216 SCRA 134 3. Orocio vs. COA, 213 SCRA 109 PART X ARTICLE X - LOCAL GOVERNMENT 1. Sections 1 & 2. ..shall enjoy local/fiscal autonomy PROVINCE OF BATANGAS VS. HON. ALBERTO ROMULO, ET AL., May 27, 2004 Local Autonomy; automatic release of funds of Local Government Units, particularly the IRA. The petitioner is questioning the constitutionality of the General Appropriations Act of 1999, 2000 and 2001 insofar as they uniformly earmarked for each year the amount of P5B of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release thereof. Likewise, the President of the Philippines issued Executive Order No. 48 entitled “Establishing a Program fro Devolution Adjustment and Equalization “ with the purpose of facilitating the process of enhancing the capacities of LGU’s in 251

252 the discharge of the functions and services devolved tot hem by the national government agencies concerned pursuant to the Local Government Code. Issue: May the Congress or the President impose conditions for the use of the IRA by the different local government units? Held: The provision of the GAA for the years 1999, 2000 and 2001 are unconstitutional as they encroach on the fiscal autonomy of the local government units in violation of the Constitution. And even if this case is already moot and academic because said provisions have been implemented, there is a possibility that the same be incorporated in the future GAA or it is capable of repetition and as such, it must be decided before another GAA is enacted. It behooves this Court to make a categorical ruling on the substantive issue now to formulate controlling principles to guide the bench, bar and the public. Likewise, the act of the President as embodied in EO No. 48 is unconstitutional because it amounts to control to local government units when the President’s power over local government units is confined to general supervision, not power of control. The distinctions of the two powers were enunciated in Drilon vs. Lim, 235 SCRA 135. Thus: An officer in control lays down the rules in the doing of an act. If they are not followed, he may in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have any discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner of doing the act. He has no judgment on this matter except to see to it that the rules are followed. Section 286 of the Local Government Code is very clear since it provides that the share of each local government unit shall be released without need of any further action, DIRECTLY TO THE PROVINCIAL, CITY, MUNICIPAL OR BARANGAY TREASURER as the case may be on a quarterly basis…and which may not be the subject to any lien or holdback that may be imposed by the national government for whatever purpose. Finally, Section 2, Art. X of the Constitution expressly mandates that the local government units shall enjoy local autonomy as well as Section 25, Art. II of the Constitution. 2. Section 3.. there shall be a LGC which shall provide a more responsive and accountable local government with effective mechanisms of recall, initiative and referendum…. Read: 1) 1991 Local Government Code on Recall, requisites, grounds and procedures) and other important aspects. 2. Exec. Order 249 Residence requirement for local government positions. TESS DUMPIT-MICHELENA VS. BOADO, ET AL., 475 SCRA 290 252

253

Carpio, J. Facts: The petitioner who is the daughter of Rep. Tomas Dumpit, 2 nd District of La Union, filed her Certificate of Candidacy for Municipal Mayor of Agoo, La Union for the May, 2004 elections. The respondents filed a case for her disqualification on the ground that she is a registered voter of Naguilian , La Union and only transferred her registration as a voter to San Julian West, Agoo, La Union, on October 24, 2003. Her presence in San Julian West, Agoo, La Union was noticed only after her certificate of candidacy. Barangay officials claimed in an affidavit that she is not a resident of the said Barangay. The petitioner countered that she acquired a new domicile in San Juan West when she purchased from her father a residential lot on April 19, 2003 and she even designated a person as caretaker of her residential house. Held: While residence and domicile are synonymous, domicile of origin is not easily lost. To successfully effect a change of domicile, the following requisites must be present: 1. an actual removal or actual change of domicile; 2. a bona fide intention of abandoning the former place of residence and establishing a new one; and 3. acts which correspond with the purpose. In the case of petitioner while she bought a parcel of land in San Julian West, Agoo, La Union on April 19, 2003, property ownership is not an indicia of the right to vote or voted for an office. To effect a change of residence, there must be animus manendi coupled with animus non revertendi. The intent to remain in the new domicile of choice must be for an indefinite period of time, change of domicile or residence must be voluntary and the residence a the place chose for the new domicile must be actual. In the case at bar, what was constructed by the petitioner on said lot was a beach house which is at most a temporary place of relaxation. It can hardly be considered a place of residence. Finally, in the Special Power of attorney designating a caretaker with a monthly salary of P2,500.00, it was shown that she is a resident of San Julian West, Agoo, La Union and No. 6 butterfly St., Valle Verde 6, Pasig, Memtro Manila. This shows that she has a number of residences and the acquisition of another one does not automatically make the recently acquired residence her new domicile. Tess Dumpit-Michelena’s cancellation of Certificate of Candidacy for Municipal Mayor of Agoo, La Union, is therefore valid. 2-a. Recall a. What are the requisites under the Local Government Code of 1991? b. Read: 1. Garcia vs. COMELEC, October 5, 1993 2. Sanchez vs. Comelec, January 24, 1991 3. Section 4. The President shall exercise general supervision over local governments… 253

254 Read:

MONDANO VS. SILVOSA, 97 Phil. 143

5. Sections 5.. Shall have the power to create their own revenues… 6. Section 6..shall have a just share in the national taxes which shall be automatically released to them.. Read: 1. Basco vs. Pagcor, 197 SCRA 52 1-a. Philippine Petroleum Corp. vs. Municipality of Pililla, 198 SCRA 82 1-b) WILLIAM LINES VS. CITY OF OZAMIS, 56 SCRA 590 1-c. Estanislao vs. Hon. Costales, May 8, 1991 2) VELASCO VS. BLAS, 115 SCRA 540 3) DE LA CRUZ VS. PARAS, 123 SCRA 569 4) MUNICIPALITY OF ECHAGUE VS. ABELLERA, December 12, 1986, 146 SCRA 5) PHILIPPINE GAMEFOWL COMMISSION VS. LAC, December 17, 1986, 146 SCRA 6. MUNICIPALITY OF MALOLOS VS. LIBANGAN SA MALOLOS, 159 SCRA 525 Section 8. The term of office of elective local officials shall be not more than 3 consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. BENJAMIN BORJA VS. COMELEC, and JOSE T. CAPCO, JR., G.R. No. 133495, September 3, 1998 Mendoza, J. Issue: Whether a Vice Mayor who succeeds to the Office of the Mayor by operation of law and serves the remainder of the term is considered to have served a term for the purpose of the three-term limit on local officials as provided under the Local Government Code. Held: No. Article X, Section 8 of the Constitution provides: Section. The term of office of elective local officials, except barangay officials, shall be determined by law, which shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The above provision of the Constitution is restated in Section 43 [b] of RA No. 7160, the Local Government Code. The term limit for local elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, IT IS NOT ENOUGH THAT AN INDIVIDUAL HAS SERVED THREE CONSECUTIVE TERMS IN AN ELECTIVE LOCAL OFFICE, HE MUST ALSO HAVE BEEN ELECTED TO THE SAME POSITION FOR THE SAME NUMBER OF TIMES BEFORE THE DISQUALIFICATION CAN APPLY.

254

255 Clearly, therefore, before the disqualification could apply, the following requisites must be present: 1. the local official must have been elected for the same position [Example: Mayor] three times; and 2. the local official must have served three consecutive terms as Mayor. In the present case, only the 2nd requisite is present since in 1988, the private respondent was not a candidate for Mayor in 1988 but as Vice Mayor though he succeeded the elected mayor in 1989. It was only in 1992 and 1995 that he was a candidate for Mayor. As such, he could still be a candidate for Mayor in the May, 1998 elections. (NOTE: Applying the above doctrine, MAYOR MAURICIO DOMOGAN of Baguio City is not prohibited from running for City Mayor of Baguio in the 2001 elections because he was not elected as City Mayor in 1992 though he served as City Mayor since 1992 as a result of the disqualification of RAMON LABO, JR.. His 1992-1995 term was not by election but by operation of law. It was only in 1995 and 1998 that he was a candidate for City Mayor (2 times) though he served 3 TERMS as Mayor. The first requisite before the disqualification applies to him is not present) ROMEO LONZANIDA VS. COMELEC, July 28, 1999, 311 SCRA 602 The petitioner was elected Mayor for three (3) consecutive terms. During his 3rd term (1995 elections), he was proclaimed the winner but his opponent filed an election protest and two (2) months before the next election and 4 months before the end of his 3rd term , the COMELEC declared his opponent to be the winner and was able to occupy the position of Mayor for 2 months. Is he entitled to run for the position of mayor in the election after he was declared a loser during his 3rd term but he almost completed 3 terms? Held: Yes because in order that the prohibition shall apply to him, the following requisites must be present: 1. the local official must have been elected for the same position [Example: Mayor] three times; and 2. the local official must have fully served three consecutive terms as Mayor. In this case, he was not elected to the position 3 times because he lost during the 3rd time though he served the office for 2 years and 10 months. Likewise even assuming that he won the 3rd election, he did not fully serve the term of 3 years. It is not enough that an individual has served 3 consecutive terms in an elective local office, he must have also been elected to the same position for the same number of times before the disqualification can apply. Prohibition to run for more than 3 consecutive terms. FEDERICO T. MONTEBON ELEANOR ONDOY, 2008

vs. COMELEC & G.R. No. 180444 , April 8,

Petitioners Montebon, Ondoy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007, 255

256 petitioners and other candidates420[4] for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term. In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor. However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections. In the hearing of May 10, 2007, the parties were directed to file their respective memoranda. In petitioners’ memorandum, they maintained that respondent’s assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected. On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an interruption in one of the previous three terms. On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondent’s assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.421[5] On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows: Respondent’s assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second term as councilor. Thus, in running for councilor again in the May 14, 2007 Elections, respondent is deemed to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his 2004-2007 term. Petitioner Montebon’s and Ondoy’s June 9, 2007 manifestation and omnibus motion are hereby declared moot and academic with the instant disposition of their motion for reconsideration. WHEREFORE, premises considered, petitioners’ motion for reconsideration is hereby DENIED for lack of merit. SO ORDERED.422[6] Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondent’s assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as municipal councilor. 420[4]

Jesus C. Mendoza, Teopisto C. Prosia, Jr., Nicolas Y. Edillon, Ernesto B. Caga, Albaerto T. Gallarde, and Eugenio M. Arigo. 421[5] Rollo, p. 34. 422[6] Id. at 27-28. 256

257

The petition lacks merit. The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the same post. Section 8, Article X thereof states: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 of the Local Government Code also provides: Sec. 43. Term of Office. No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. In Lonzanida v. Commission on Elections,423[7] the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms.424[8] In Borja, Jr. v. Commission on Elections,425[9] the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.426[10] While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004. Succession in local government offices is by operation of law.427[11] Section 44428[12] of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. Thus: SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. – (a) If a 423[7]

370 Phil. 625 (1999). Id. at 636. 425[9] 356 Phil. 467 (1998). 426[10] Id. at 478. 427[11] See Borja, Jr. v. Commission on Elections, 356 Phil. 467, 476-477 (1998). 428[12] SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x. 257 424[8]

258 permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor. In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows: The second sentence of the constitutional provision under scrutiny states, ‘Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.’ The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.429[13] (Emphasis added) Thus, respondent’s assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC that – The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently unable to succeed and occupy the post vacated. xxxx Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.430[14] 429[13] 430[14]

Supra note 7 at 638. Rollo, p. 26. 258

259 THREE-TERM LIMIT FOR BARANGAY CAPTAINS. NICASIO BOLOS, JR. VS. THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, G.R. No. 184082, March 17, 2009 The facts are as follows: For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002. In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post as Punong Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007. Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160. Cinconiegue contended that petitioner’s relinquishment of the position of Punong Barangay in July 2004 was voluntary on his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a voluntary renunciation of his post as Punong Barangay. In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang Bayan member, his remaining term of office as Punong Barangay, which would have ended in 2007, was left unserved. He argued that his election and assumption of office as Sangguniang Bayan member was by operation of law; hence, it must be considered as an involuntary interruption in the continuity of his last term of service. Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the Hearing Officer’s action on the matter were endorsed to and received by the Commission on November 21, 2007. The issue before the COMELEC was whether or not petitioner’s election, assumption and discharge of the functions of the Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office as Punong Barangay of Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service as Punong Barangay for the full term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have served three 259

260 consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections. But if it is considered as an involuntary renunciation, petitioner’s service is deemed to have been interrupted; hence, he is not barred from running for another term. In a Resolution431[1] dated March 4, 2008, the First Division of the COMELEC ruled that petitioner’s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was a voluntary renunciation of the Office of Punong Barangay. The dispositive portion of the Resolution reads: WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition. Respondent NICASIO BOLOS, JR., having already served as Punong Barangay of Barangay Biking, Dauis, Bohol for three consecutive terms is hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Barangay and SK Elections. Considering that respondent had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said office shall be governed by the provisions of Section 44 of the Local Government Code.432[2] Petitioner’s motion for reconsideration was denied by the COMELEC en banc in a Resolution433[3] dated August 7, 2008. Hence, this petition for certiorari raising this lone issue: WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY IN THE OCTOBER 29, 2007 BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS PROCLAMATION.434[4] The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by petitioner when he assumed office as Municipal Councilor so that he is deemed to have fully served his third term as Punong Barangay, warranting his disqualification from running for the same position in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms. Nonetheless, while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its discretion in disqualifying him as a candidate for Punong 431[1]

Rollo, pp. 15-23. Id. at 22. 433[3] Id. at 24-27. 434[4] Id. at 8. 432[2]

260

261 Barangay since he did not complete his third term by operation of law. The argument does not persuade. The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution, which provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. David v. Commission on Elections435[5] elucidates that the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service. The discussions in the Constitutional Commission showed that the term of office of barangay officials would be “[a]s may be determined by law,” and more precisely, “[a]s provided for in the Local Government Code.”436[6] Section 43(b) of the Local Government Code provides that barangay officials are covered by the three-term limit, while Section 43(c)437[7] thereof states that the term of office of barangay officials shall be five (5) years. The cited provisions read, thus: Sec. 43. Term of Office. – x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. 435[5]

G.R. No. 127116, April 8, 1997, 271 SCRA 90, 104.

436[6]

Id. at 104-105. will be the term of the MR. DAVIDE.

MR. NOLLEDO. One clarificatory question, Madam President. What office of barangay officials as provided for? As may be determined by law.

MR. NOLLEDO.

As provided for in the Local Government Code?

MR. DAVIDE.

Yes. xxx

xxx

xxx

THE PRESIDENT. Is there any other comment? Is there any objection to this proposed new section as submitted by Commissioner Davide and accepted by the Committee? MR. RODRIGO. three

Madam President, does this prohibition to serve for more than consecutive terms apply to barangay officials?

MR. DAVIDE. Madam President, the voting that we had on the terms of office did not include the barangay officials because it was then the stand of the Chairman of the Committee on Local Governments that the term of barangay officials must be determined by law. So it is now for the law to determine whether the restriction on the number of reelections will be included in the Local Government Code. MR. RODRIGO. MR. DAVIDE.

So that is up to Congress to decide.

Yes.

MR. RODRIGO. I just wanted that clear in the record.

437[7]

As amended by R.A. No. 8524, which took effect on March 11, 1998. 261

262

(c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin after the regular election of barangay officials on the second Monday of May 1997: Provided, That the sangguniang kabataan members who were elected in the May 1996 elections shall serve until the next regular election of barangay officials. Socrates v. Commission on Elections 438[8] held that the rule on the three-term limit, embodied in the Constitution and the Local Government Code, has two parts: x x x The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. 439[9] In Lonzanida v. Commission on Elections,440[10] the Court stated that the second part of the rule on the three-term limit shows the clear intent of the framers of the Constitution to bar any attempt to circumvent the threeterm limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term. The Court held that two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same government post; and (2) that he has fully served three consecutive terms.441[11] In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms, satisfying the first condition for disqualification. What is to be determined is whether petitioner is deemed to have voluntarily renounced his position as Punong Barangay during his third term when he ran for and won as Sangguniang Bayan member and assumed said office. The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position as Punong Barangay. The COMELEC correctly held: It is our finding that Nicasio Bolos, Jr.’s relinquishment of the office of Punong Barangay of Biking, 438[8]

G.R. No. 154512, November 12, 2002, 391 SCRA 457. Id. at 467. 440[10] G.R. No. 135150, July 28, 1999, 311 SCRA 602, 613. 441[11] Id. at 611. 439[9]

262

263 Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, is a voluntary renunciation. As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of office when he ran for a third term in the Barangay Elections of 2002. When he filed his certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as Punong Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed his Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for him as such and then after being elected and proclaimed, return to his former position. He knew that his election as municipal councilor would entail abandonment of the position he held, and he intended to forego of it. Abandonment, like resignation, is 442[12] voluntary. Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the Court deems as a voluntary renunciation of said office. Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left his post as Punong Barangay by operation of law; hence, he did not fully serve his third term as Punong Barangay. The term “operation of law” is defined by the Philippine Legal Encyclopedia443[13] as “a term describing the fact that rights may be acquired or lost by the effect of a legal rule without any act of the person affected.” Black's Law Dictionary also defines it as a term that “expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or cooperation of the party himself.”444[14] An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v. Commission on Elections.445[15] The respondent therein, Sesinando F. Potencioso, Jr., was elected and served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 19982001, 2001-2004, and 2004-2007. However, during his second term, he succeeded as Vice-Mayor of Tuburan due to the retirement of the ViceMayor pursuant to Section 44 of R.A. No. 7160.446[16] Potencioso’s 442[12]

Rollo, pp. 18-19. Jose Agaton R. Sibal, copyright 1986. 444[14] Sixth Edition, copyright 1990. 445[15] G.R. No. 180444, April 9, 2008, 551 SCRA 50. 446[16] SEC. 44. Permanent Vacancies in the Offices of the Governor, Mayor, and Vice Mayor.—(a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vicegovernor, mayor or vice-mayor, the highest ranking sanggunian member or in case of his permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein. x x x 263 443[13]

264 assumption of office as Vice-Mayor was considered an involuntary severance from his office as Municipal Councilor, resulting in an interruption in his second term of service.447[17] The Court held that it could not be deemed to have been by reason of voluntary renunciation because it was by operation of law.448[18] Hence, Potencioso was qualified to run as candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized National and Local Elections. Further, in Borja, Jr. v. Commission on Elections,449[19] respondent therein, Jose T. Capco, Jr., was elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco became Mayor, by operation of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for two more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11, 1998 election. Capco’s disqualification was sought on the ground that he would have already served as Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court declared that the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve the same elective position. 450[20] The Court held that Capco was qualified to run again as mayor in the next election because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law.451[21] Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor.452[22] The vice-mayor’s assumption of the mayorship in the event of the vacancy is more a matter of chance than of design.453[23] Hence, his service in that office should not be counted in the application of any term limit.454[24] In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead relinquished his office as Punong Barangay during his third term when he won and assumed office as Sangguniang Bayan member of Dauis, Bohol, which is deemed a voluntary renunciation of the Office of Punong Barangay. In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008, disqualifying petitioner from being a candidate for Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections. WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and August 7, 2008 are hereby AFFIRMED. 5. Section 10. No province, city, municipality or barangay may be created, divided, merged or abolished, or its boundary substantially altered, except in accordance with the criteria established in the 447[17]

Supra note 15. Id. 449[19] G.R. No. 133495, September 3, 1998, 295 SCRA 157. 450[20] Id. at 169. 451[21] Id. at 170. 452[22] Id. 453[23] Id. at 168. 454[24] Id. 448[18]

264

265 LGC and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Read: 1) PAREDES VS. EXECUTIVE SECRETARY, 128 SCRA 6 2) LOPEZ VS. METRO MANILA COMMISSION, 136 SCRA 633 3) TAN VS. COMELEC, 142 SCRA 727(If a province or town is created from an existing province or town, not only the registered voters of the newly-created province or town shall participate but also the registered voters of the province or city where the new local government unit was taken because they are also “directly affected”. 4) Padilla vs. COMELEC, 214 SCRA 735 6. Sections 11-14 Read: 1) CENIZA VS. COMELEC, 95 SCRA 763 2) Differentiate a highly urbanized city from a component city (See BP 337, Sections 162-168) 7. Sections 15-21 Is there a Cordillera Autonomous Region? a. Read: Exec. Order No. 220 b. Ordillo vs. Comelec, 192 SCRA 100 (If only one Province or only one city of the Cordilleras will vote in favor of autonomy, such is not enough to constitute a Region. There must at least be two (2) provinces or one province and the City of Baguio for form a Region) PART XI ARTICLE XI - ACCOUNTABILITY OF PUBLIC OFFICERS 1. Sections 1. Public Office is a public trust. CAMILO L. SABIO vs. GORDON, G.R. No. 174340, October 17, 2006, 504 SCRA 704 Sandoval-Gutierrez, J. The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),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.”

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. 455.456[6] 455[4] 456[6]

Annex “E” of the Petition in G.R. No. 174318. Annex “F” of the Petition in G.R. No. 174318. 265

266 On May 9, 2006, Chairman Sabio declined the invitation because of prior commitment.457[7] At the same time, he invoked Section 4(b) of E.O. No. 1.

I S S U E:

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. Assuming that it has not been repealed, is it not inconsistent with Section 1, Art. XI which states that public office is a public trust? The petition has no merit. Section 4(b) of E.O. No.1 limits the 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.

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.458[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 non-accountability. In Presidential Commission on Good Government v. Peña,459[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 457[7]

Annex “G” of the Petition in G.R. No. 174318. De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.

458[24] 459[25]

No. L-77663, April 12, 1988, 159 SCRA 558.

266

267 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. x x x. 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. Sandiganbayan460[26] reiterates the same view. Indeed, Section 4(b) has been frowned upon by this Court even before the filing of the present petitions.

2. Sections 12--18 a. Impeachment, officers of the government who are impeachable, grounds, limitations for its exercise, procedure, etc. . . Read: ROMULO, et al vs. YNIGUEZ, et al, 141 SCRA 263 “Culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust” Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any other office under the Republic of the Philippines but shall nevertheless be liable to prosecution, trial and punishment according to law. Read: FRANCISCO VS. SPEAKER JOSE DE VENECIA, ET AL, 415 SCRA 44, November 10, 2003 When is an impeachment complaint deemed to be a bar to the filing of another complaint within a 1-year period? A verified impeachment complaint bars the filing of another complaint against an impeachable official within a period of 1 year after the same was received by the House of Representatives and referred by the Speaker to the appropriate committee for its study and recommendation. It is deemed initiated under Art. XI, Section 3 [5] after the referral to the Committee by the Speaker. To “initiate” refers to the filing of the impeachment complaint COUPLED WITH CONGRESS TAKING INITIAL ACTION OF SAID COMPLAINT.” a-1. Degree of loyalty, etc. of government employee. Read: Lim-Arce vs. Arce, 205 SCRA 21 460[26]

193 SCRA 282 (1991). 267

268

c. The SANDIGANBAYAN AND TANODBAYAN DECREES Read: 1) PD's 1486, 1847, 1606, 1607 and 1630 2) Exec. Order 244 3) NUNEZ VS. SANDIGANBAYAN, 111 SCRA 433 4) MANGUBAT VS. SANDIGANBAYAN, 147 SCRA 478 5) GABISON VS. DE LOS ANGELES, 151 SCRA 61 6) ZALDEVAR VS. RAUL GONZALES, April 27, 1988 and the Resolution of the Motion for Reconsideration dated 19 May 1988 6) BAGASO VS. SANDIGANBAYAN, 155 SCRA 154 7) DE JESUS VS. PEOPLE, 120 SCRA 760 8) QUIMPO VS. TANODBAYAN, December 2, 1986, 146 SCRA 9) INTING VS. TANODBAYAN, 97 SCRA 494 b-1 Who prosecutes public officials? Exception Read: 1. Corpuz vs. Tanodbayan, 149 SCRA 281 c. Disqualification of public officer Read: 1) MINOR VS. AGBU, April 10, 1987 2) MAHARLIKA PUBLISHING VS. TAGLE, 142 SCRA 553 Power of the Ombudsman to suspend or dismiss public officials. Not only to recommend but to directly dismiss or suspend public officials. REMIA F. BONCALON vs. COMELEC, G.R. No. 171812, December 24, 2008. QUISUMBING, J. The antecedent facts are as follows: On November 25, 1997, Loida C. Arabelo,461[5] the State Auditor II of Bago City, Negros Occidental, conducted an audit on the cash accounts of Boncalon, a Cashier IV at Bago City Treasurer’s Office. The audit revealed a cash shortage of P1,023,829.56.462[6] The state auditor also discovered, upon verification from the 461[5] 462[6]

Arabello in some parts of the records. Rollo, pp. 52-53. xxxx 1 The City Cashier IV, Remia F. Boncalon, was short of P1,023,829.56 on her cash accountability at the time of the examination due to falsification, undocumented and overstated disbursements, undeposited collection and in connivance with Renato L. Diy, Manager and Ernesto Sa-onoy, Cashier, both of PNB-RB, Bago City Branch, in violation of Articles 171, 217 and 222 of the Revised Penal Code; The cash shortage was arrived at as follows: Balance of Accountability as of November 25, 1997 per cashbook -

P

ADD: Debits to Accountability Fictitious entry in the official Cashbook for deposit under Fictitious Report of Daily Collections and Deposits No. 101-97101836 dated 10/31/97

P 1,019,535.21

47,106.14

Fictitious entry of payroll No. 14432 in the Report of Cash Disbursement No. 101-9706994 dated 8/18/97 and in the official cashbook of the accountable

268

269 depository bank, that the entry in Boncalon’s cashbook pertaining to the deposit of P1,019,535.21 on October 31, 1997 was false. Deposits totaling said amount were made only on November 25, 1997 and December 22, 1997, in the amounts of P200,000.00 and P819,535.21, respectively. In view of the audit findings, Boncalon was administratively charged with dishonesty before the Office of the Ombudsman (Visayas). The case was docketed as OMB-VIS-ADM-99-0488. Boncalon denied accountability for any cash shortage and averred that she was informed by the state auditor of the alleged shortage only on October 1, 1998, or after she had gone on a commuted leave of absence from April 13, 1998 to July 15, 1998, wherein she was cleared of money and property accountability and paid the corresponding money value of said leave.463[7] She also contended that had the state auditor examined her safe, she would have found the bundles of money worth P819,535.21, which she had overlooked.464[8] Graft Investigation Officer (GIO) I Alvin Butch E. Cañares recommended the dismissal of the case since the questioned amounts were already accounted for. He also said that the erroneous entry of deposit in Boncalon’s cashbook can only be considered as an administrative lapse, subject only to the admonition of the erring public officer. Upon review, Director Virginia Palanca-Santiago, Office of the Ombudsman (Visayas), reversed the recommendation of GIO I Cañares. She ruled that the untimely deposit of the questioned amount only means that Boncalon was in possession of the money and had made use of it. Further, her act of falsifying an entry of deposit in her cashbook, which is an official document, signifies want of integrity on her part as she had the disposition to betray, cheat or defraud the government.465[9] Boncalon sought reconsideration, but to no avail. Thus, she appealed to the Court of Appeals. In the Decision dated February 27, 2004, the Court of Appeals found Boncalon guilty of dishonesty under Section 23, Rule XIV of the Omnibus Rules on Civil Service. Citing the Cash Examination Manual, the Court of Appeals stressed that entries in the cashbook are the direct and personal responsibility of every cash accountable officer. And should they be duly permitted to be assisted by subordinates in case of heavy volume of work, the work of their subordinates still remains under their close and strict supervision. The Court of Appeals also emphasized that when Boncalon certified under oath that she “produced all her cash, treasury, warrants, checks, money orders, cash items, paid vouchers, unused accountable forms, etc. to the Auditor/Examiner on November 25, 1997,” she cannot later claim that she simply failed to notice the bundles of money in her safe.466[10] The fallo of the decision reads, Officer

P

2,550.00

Overstatement of total of Report of Cash Disbursement No. 101-9706994 dated 5/30/97

P

1,644.02

Amount of collection for the months of June and August 1997 not deposited Total Audited Accountability as of Nov. 25, 1997 Less: Credits to Accountability Cash and Valid cash items counted at the time of the examination SHORTAGE (Emphasis ours.) 463[7]

CA rollo, pp. 23-24.

464[8]

Id. at 26.

465[9]

Id. at 18-21.

466[10]

P

100.33 P 1,023,829.56 P 1,070,935.70

47,106.14 P 1,023,829.56

Rollo, pp. 32-34.

269

270 WHEREFORE, the instant petition is hereby DENIED. Accordingly, the finding of the Office of the Ombudsman holding petitioner guilty of dishonesty and meting the penalty of dismissal from government service with forfeiture of all benefits and perpetual disqualification of holding public office is hereby AFFIRMED. SO ORDERED.467[11] Aggrieved, Boncalon filed this petition contending that: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING PETITIONER’S DISMISSAL FROM THE SERVICE WITH FORFEITURE OF ALL BENEFITS AND PERPETUAL DISQUALIFICATION TO HOLD PUBLIC OFFICE ALTHOUGH THE OMBUDSMAN HAS NO POWER TO DISMISS PUBLIC OFFICIALS AND EMPLOYEES; II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING PETITIONER’S DISMISSAL FROM THE SERVICE, DESPITE THE FACT THAT SHE HAS NOT INCURRED ANY SHORTAGE; THAT SHE HAS BEEN CLEARED OF MONEY AND PROPERTY ACCOUNTABILITY; THAT SHE HAS ACCOUNTED THE FUNDS IN HER CUSTODY AND NO DAMAGE HAS BEEN CAUSED TO THE CITY OF BAGO; and III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING PETITIONER’S DISMISSAL FROM THE SERVICE DESPITE THE ABSENCE OF PROOF BUT RELIANCE MERELY ON PRESUMPTIONS, CONJECTURES AND INFERENCES THAT ARE MISTAKEN.468[12] Essentially, the issues for resolution are: (1) Did the Court of Appeals err in upholding Boncalon’s dismissal from service on the ground of dishonesty? and (2) Is the Ombudsman empowered to dismiss public officials and employees in administrative cases? Petitioner contends that the alleged shortage was already accounted for in the November 25, 1997 and December 22, 1997 bank deposits. She explains that the late deposits of the said amounts were due to her failure to notice the same in her safe, as they were in bundles. She also argues that the posting of entries in her cashbook was already delegated to her subordinates due to her multifarious duties and functions as Cashier IV. As such, the entry of deposit dated October 31, 1997 may only have been an unintended mistake of her subordinates, considering that it was the last day of the month and holiday season followed. She further avers that for liability to attach, notice and demand must be made upon her to afford her due process, but to the contrary, the state auditor informed her only on October 1, 1998 or more than ten months after the audit, and after she had gone on an approved leave of absence wherein she was cleared of money and property accountability and paid the money value of said leave. Invoking Madarang v. Sandiganbayan,469[13] she finally contends that mere absence of funds is not sufficient proof of conversion, nor is her mere failure to turn over 467[11]

Id. at 36.

468[12]

Id. at 17.

469[13]

G.R. No. 112314, March 28, 2001, 355 SCRA 525, 535.

270

271 the funds at any given time sufficient to make a prima facie case, for conversion must be affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows. The Office of the Solicitor General (OSG), for respondent Office of the Ombudsman (Visayas), maintains that the Court of Appeals did not err in upholding Boncalon’s dismissal because the cash shortage and false entry of deposit remained undisputed. Even assuming that it was her subordinates who posted the said entry in her cashbook, still, she should have taken the necessary precautions to verify the truthfulness of each entry therein. But she did not. Thus, her explanation, that she overlooked the P819,535.21 inside her safe as they were in bundles, was purely an alibi, too flimsy to accept. After a judicious evaluation of the submissions and pieces of evidence of both parties, we are in agreement that petitioner is, indeed, guilty of dishonesty. First, this Court finds no basis for Boncalon’s protestations that she was deprived of due process of law merely because the state auditor belatedly notified her of the alleged cash shortage. In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of. 470 [14] Here, we take note that Boncalon was given every opportunity to explain her side in her letters to the state auditor dated October 5, 1998, 471[15] October 19, 1998472[16] and December 10, 1998.473[17] She was further heard in person during investigation by the graft investigating officer, as well as by the Director of the Office of the Ombudsman (Visayas), and she was able to participate in all the stages of the administrative proceedings. Despite all these, she could not justify the averred cash shortage as of November 25, 1997. 470[14] 471[15]

Casimiro v. Tandog, G.R. No. 146137, June 8, 2005, 459 SCRA 624, 633. CA rollo, p. 34. xxxx Dear Miss Arabelo: xxxx Considering the big amount involved and the lapse of time… I respectfully request that I be given a time of at least three (3) weeks within (sic) to go over my records to determine the basis of such findings. xxxx

472[16]

Id. at 35. xxxx 1) Re – undeposited amount One Million Nineteen Thousand Five Hundred Thirty Five & 21/100 (P1,019,535.21)… Of the amount of P1,019,535.21, the P200,000.00 was already deposited on November 25, 1997 when the examination was conducted per deposit slip copy hereto attached. The balance of P819,535.21 was deposited on December 22, 1997 per deposit slip copies hereto attached. The small delay in affecting the deposit was due to the volume of work in the office and in the preparation of the necessary papers relative hereto. Be that as it is, this [deficiency] has already been long adjusted. (Emphasis supplied.) xxxx

473[17]

Id. at 36. xxxx 1) How the shortage of P1,023,829.56 occurred. The shortage of P1,023,829.56 is not, strictly speaking, a shortage because the amounts, like the P200,000 was already deposited with the bank at the time of the cash examination which you failed to consider in the audit; the amount of P819,535.21 was already bundled and prepared ready for deposit;… These differences were brought about because of the multifarious duties of a cashier and lack of properly trained personnel. The Office of the cashier handling several funds among them the General fund (includes Infra and Nalgu) Trust Fund and Special Educational Fund has only nine (9) personnel. 2) [Why the] deposits of P200,000.00 and P819,535.21 made on November 25, 1997 and December 22, 1997 respectively, were not presented to you (examiner) during the cash count last November 25, 1997. During the cash examination, on your demand, all my cash, cash items and other papers related to such examination, were presented to you. If you have missed some of them in your cash count I could not be blamed for them because my attention was never called by you for any discrepancy. From November 25, 1997, the date of the examination, it was only on October 1, 1998 that you formally notified me of the discrepancies you found in my accounts, a lapse of more than ten (10) months. Since a cash examination is to be done contin[u]ously and completely, after a lapse of a reasonable time of more than five (5) months without any report of a discrepancy in my accounts as Cashier, I was confident my accountabilities were okay. That is why your letter of October 1, 1998 was a complete surprise. (Emphasis and underscoring supplied.) xxxx

271

272 The Court acknowledges that indeed, as claimed by petitioner, when auditor Arabelo made her demand on October 2, 1998 upon the petitioner to restitute P1,023,829.56474[18] the same had already been settled and as of the said date the discrepancies found in connection with the November 25, 1997 audit had already been ironed out. Considering that the demand was made at the time when the amounts had already been produced, then the prima facie evidence that missing funds were put to personal use, which presumption Article 217 of the Revised Penal Code supplies in connection with the felony of malversation, did not arise. But the absence of the said prima facie evidence does not necessarily equate to an absence of administrative liability on the part of petitioner. It is undisputed that: 1) Petitioner had the duty to deposit in the bank the amount of P1,019,535.21 by October 31, 1997; 2) Such amount was not deposited on October 31, 1997; 3) The entry in petitioner’s cashbook of a deposit on October 31, 1997 in the amount of P1,019,535.21 is false; 4) The amount was deposited in two tranches – P200,000 on November 25, 1997 and P819,535.21 on December 22, 1997. These circumstances starkly speak of an irregularity that calls for an explanation on the part of the responsible officer. Petitioner wants to pass off the matter as an innocent error on her part. Her explanation however fails to convince us that the subject entry was an honest mistake or innocuous error. Her claim that the cash of P819,535.21 was in the safe when the audit was conducted on November 25, 1997, is contradicted by her certification that she produced all her cash items, which amounted to only P47,106.14 in total, before the state auditor on the said date. Also, her claim of having overlooked the bundles of money that were just sitting in her safe is far too incredible to believe. Evidence, to be worthy of credit, must not only proceed from the mouth of a credible witness but must be credible in itself. Stated otherwise, it must be natural, reasonable and probable as to make it easy to believe.475[19] There is no test of the truth of human testimony except its conformity to human knowledge, observation, and experience, and that whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance. 476[20] In the instant case, the subject “overlooked” sum would comprise, at the very least, eight bundles of P1,000 peso bills plus other notes and coins. This stash is simply too bulky and noticeable to be overlooked, especially in the face of an ongoing audit and cash examination. It is more reasonable to believe the certification which states that the cash items at the time of the audit amounted to only P47,106.14. Petitioner, by making or allowing the making of the subject false entry of deposit, made it appear that the money was already out of her possession and that it was already in the bank, when the truth was that the money was not yet in the bank and was actually unaccounted for. The fact that undated deposit slip/s were used to support the entry of deposit as of October 31, 1997 in the cashbook is already irregular. The undisputed and totally unexplained odd fact that the total amount was split into two deposits that were separately made weeks after the entire sum was supposed to have been deposited on a single day -- October 31, 1997 -underscores the irregularity. Such acts when connected together paint a clear picture of deliberateness, not innocent error. The same manifests bad faith or, at the very least, each of the said acts constitutes gross negligence amounting to bad faith. The circumstance that the entry of deposit on October 31, 1997 was never corrected to reflect the fact of non-deposit of the amount on that date and the fact of the corresponding deposits of P200,000 on November 25, 1997 and P819,535.21 on December 22, 1997 further underscores the conclusion that the matter was not an innocuous error. 474[18]

P200,000 was deposited on November 25, 1997, as evidenced by the deposit slip; P819,535.21 was deposited on December 22, 1997, as evidenced by the deposit slip; P4,194.52 was refunded and deposited under O.R. No. 0527601 as evidenced by the O.R. and deposit slip; P100.03 which represents errors in recording of P0.30, P100 and P0.03 were already taken up and recorded as entries. (CA rollo, pp. 35 & 55). 475[19] Safeguard Security Agency, Inc. v. Tongco, G.R. No. 165733, December 14, 2006, 511 SCRA 67, 84; People v. Villaflores, G.R. Nos. 135063-64, December 5, 2001, 371 SCRA 429, 442. 476[20] Safeguard Security Agency, Inc. v. Tongco, id.; People v. Escalante, G.R. No. 106633, December 1, 1994, 238 SCRA 554, 563.

272

273 Dishonesty is defined as “the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty.”477[21] The unsatisfactorily explained false entry of deposit in the amount of P1,019,535.21 on October 31, 1997 clearly constitutes dishonesty. Second, her justification that she did not prepare or post the said entry of deposit deserves scant consideration because it appears to be a mere feeble attempt to shift the blame to her subordinates. As explicitly provided in the Cash Examination Manual, entries in her cashbook are her personal and direct responsibility even in instances when she can delegate the task to a subordinate due to a heavy volume of work. Moreover, it is highly unacceptable for a public officer like petitioner to attribute the lack of diligence in work to the day of the month it was performed, i.e., last day of the month and the fact that holiday season followed. Due diligence at work should be observed at all times. Third, her liability cannot be mitigated, much less can she be exonerated, because no pecuniary damage was allegedly incurred by the government on account of the late deposits of the public money in the depository bank. As a cashaccountable officer, her duty is to immediately deposit the various funds she received with the authorized government depositories. This duty is clearly set out in Commission on Audit Circular No. 91-368478[22] which states: Sec. 465. Deposit of Collections. – The treasurer/cashier shall deposit intact all his collections as well as all collections turned over to him by the collectors/tellers with the authorized depository bank daily or not later than the next banking day. He shall summarize the collections and deposits accomplishing the Cashier/Treasurer’s Report of Daily Collections and Deposits (CTRDCD), Prov. Form No. 213(a) in three copies. The original and duplicate, together with the original and duplicate copies of the DSCAF’s and the deposit slips and the duplicates of official receipts, shall be submitted daily to the accountant. The third copies of the CTRDCD and the DSCAFs shall be retained by the treasurer/cashier. In the case of municipalities where travel time to the depository bank is more than one day, deposit of collections shall be made at least once a week, or as soon as the collections reach P10,000. Clearly, petitioner is not supposed to keep funds in her custody for longer than a week. A failure to make a timely turnover of the cash received by her constitutes, not just gross negligence in the performance of her duty, but gross dishonesty, if not malversation.479[23] Lastly, Madarang cannot be considered as precedent in the case at bar because the former is a criminal case for malversation while the instant case is an administrative case for dishonesty. It is not amiss to point out that public servants ought to exhibit at all times the highest sense of honesty and integrity, for no less than the Constitution mandates that a public office is a public trust. Public officers and employees are accountable to the people, and must serve with utmost responsibility, integrity, loyalty, and efficiency, as well as act with patriotism and justice, and lead modest lives.480[24] These constitutionally-enshrined principles, oft-repeated in our 477[21]

Alfonso v. Office of the President, G.R. No. 150091, April 2, 2007, 520 SCRA 64, 87.

478[22]

INSTITUTING A GOVERNMENT ACCOUNTING AND AUDITING MANUAL AND PRESCRIBING ITS USE, which took effect on January 1, 1992. 479[23] See Concerned Citizen v. Gabral, Jr., A.M. No. P-05-2098, December 15, 2005, 478 SCRA 13, 22. 480 [24] Section 1, Article XI, 1987 Philippine Constitution. SECTION 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.

273

274 decisions, are not mere rhetorical flourishes or idealistic sentiments, but they are working standards in accord with the State’s policy of promoting a high standard of ethics and utmost responsibility in the public service. Apropos the second issue, petitioner contends in her defense that the power of the Ombudsman concerning penalty after an investigation of public officials or employees is merely recommendatory. Thus, it cannot directly impose sanctions against them. On the other hand, the OSG maintains that the prevailing doctrine, as enunciated by us in Ledesma v. Court of Appeals,481[25] is that the power of the Ombudsman with regard to imposing sanctions is not merely advisory but mandatory. On this point, we find that the stance of the OSG is correct. We have repeatedly held in a catena of precedents, 482[26] aside from Ledesma, that the Ombudsman has the power to directly impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of an erring public official, other than a member of Congress and the Judiciary, within the exercise of its administrative disciplinary authority as provided for in Section 13(3),483[27] Article XI of the 1987 Constitution, and Section 15(3)484[28] of Republic Act No. 6770.485[29] The clear and precise discussion of Justice Carpio on the matter in Office of the Ombudsman v. Court of Appeals486[30] is worth repeating here, to wit: While Section 15(3) of RA 6770 states that the Ombudsman has the power to “recommend x x x removal, suspension, demotion x x x” of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may “enforce its disciplinary authority as provided in Section 21” of RA 6770. The word “or” in Section 15(3) before the phrase “enforce its disciplinary authority as provided in Section 21” grants the Ombudsman this alternative power. Section 21487[31] of RA 6770 vests in the Ombudsman “disciplinary authority over all elective and appointive officials of the Government,” except impeachable officers, members of Congress, 481[25]

G.R. No. 161629, July 29, 2005, 465 SCRA 437.

482[26]

Barillo v. Gervasio, G.R. No. 155088, August 31, 2006, 500 SCRA 561; Office of the Ombudsman v. Madriaga, G.R. No. 164316, September 27, 2006, 503 SCRA 631; Office of the Ombudsman v. Court of Appeals, G.R. No. 168079, July 17, 2007, 527 SCRA 798; Balbastro v. Junio, G.R. No. 154678, July 17, 2007, 527 SCRA 680; Office of the Ombudsman v. Santiago, G.R. No. 161098, September 13, 2007, 533 SCRA 305. 483[27] Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: x xxx (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis ours.) xxxx 484

[28]

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties: xxxx (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis and underscoring ours.) xxxx

485[29]

AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES, approved on November 17, 1989. 486[30] Supra note 26, at 807-808. 487[31]

SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. ― The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

274

275 and the Judiciary. And under Section 25 of RA 6770, the Ombudsman may impose in administrative proceedings the “penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman x x x.” Clearly, under Rep. Act No. 6770 the Ombudsman has the power to directly impose administrative penalty on public officials or employees. WHEREFORE, the Decision dated February 27, 2004 and Resolution dated February 14, 2006 of the Court of Appeals in CA-G.R. SP No. 71911, finding petitioner guilty of DISHONESTY and dismissing her from government service, with forfeiture of retirement benefits and perpetual disqualification to hold public office, are hereby AFFIRMED. Read: Buenaseda vs. Flavier, September 21, 1993 PART XI ARTICLE XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 1. Secs. 1-19 2. Adjudicatory Power of the Commission on Human Rights Read: 1. Carino vs. CHR, December 2, 1991 2. EPZA vs. CHR, April 14, 1992 Read also: 1) SUMULONG VS. GUERRERO, G.R. No. L-48685, Sept. 30, 1987 2) DIZON VS. GEN. EDUARDO, G.R. No. 59118, March 3, 1988 3) Exec. Order No. 163, May 5, 1987, Declaring the effectivity of the creation of the Commission on Human Rights as provided for under the 1987 Constitution. 4) Memorandum Order No. 20, July 4, 1986 PART XIII ARTICLE XIV - EDUCATION, SCIENCE, etc.. 1. Secs. 1-19 a. Read: RA 6655-The Free Secondary Education Act

of 1988

Section 5 [2] Academic freedom shall be enjoyed in all institutions of higher learning. b. What is academic freedom? VERY IMPORTANT: (2007 BAR QUESTION) Under the 1973 Constitution, “Academic freedom shall by enjoyed BY ALL institutions of higher learning” while under the 1987 Philippine Constitution, “Academic freedom shall be enjoyed IN ALL institutions of higher learning.” In 275

276 short, before, ONLY INSTITUTIONS OF HIGHER LEARNING ENJOY ACADEMIC FREEDOM UNDER THE 1973 CONSTITUTION WHILE UNDER THE 1987 CONSTITUTION, ACADEMIC FREEDOM IS ALSO ENJOYED BY THE TEACHERS AND PROFESSORS AS WELL AS STUDENTS, ASIDE FROM THE SCHOOL. Academic freedom; due process in disciplinary actions involving students; right to cross-examine is not part of due process in investigations involving students. DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980, December 19, 2007 REYES, R.T., J.: THE FACTS: PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB)488[1] Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity. On March 29, 1995, James Yap was eating his dinner alone in Manang’s Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux. He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manang’s. Then, the three, together with four other persons went back to Manang’s and confronted the two who were still in the restaurant. By admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence then. After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council. The Tau Gamma Phi Fraternity was asking for an apology. “Kailangan ng apology” in the words of respondent Aguilar. But no apology was made. On March 25, 1995, Ten minutes before his next class at 6:00 p.m., James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue. As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back. Eight to ten guys were running towards him. He panicked. He did not know what to do. Then, respondent Bungubung punched him in the head with something heavy in his hands – “parang knuckles.” Respondents Reverente and Lee were behind Yap, punching him. Respondents Bungubung and Valdes who were in front of him, were also punching him. As he was lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and the group of attackers left. Yap could not recognize the other members of the group who attacked him. With 488[1]

College of Saint Benilde is an educational institution which is part of the De La Salle System.

276

277 respect to respondent Papio, Mr. Yap said “hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya.” What Mr. Yap saw was a long haired guy also running with the group. The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the “Domino Lux Fraternity,” while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of “Tau Gamma Phi Fraternity,” a rival fraternity. The next day, March 30, 1995, petitioner Yap lodged a complaint 489[7] with the Discipline Board of DLSU charging private respondents with “direct assault.” Similar complaints490[8] were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente. Thus, cases entitled “De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BSAPM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)” were docketed as Discipline Case No. 9495-3-25121. The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.491[9] Said notices issued by De La Salle Discipline Board uniformly stated as follows: Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano. You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf. You may be assisted by a lawyer when you give your testimony or those of your witnesses. On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony. Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of. For your strict compliance.492[13] During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi.

489[7]

Id. at 127. Id. at 128-129. 491[9] Id. at 130-133. 492[13] Id. at 134. 490[8]

277

278 On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution493[18] finding private respondents guilty. They were meted the supreme penalty of automatic expulsion,494[19] pursuant to CHED Order No. 4. 495[20] The dispositive part of the resolution reads: WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (ABMGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion. In the case of respondent MALVIN A. PAPIO (ABMGT/9251227), the Board acquits him of the charge. SO ORDERED.496[21] Private respondents separately moved for reconsideration 497[22] before the Office of the Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a Letter-Resolution498[23] dated June 1, 1995. On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior Vice-President for Internal Affairs. The following day, June 6, 1995, respondent Judge issued a TRO 499[24] directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995. On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records of Discipline Case No. 9495-3-25121, 500[28] in view of the authority granted to it under Section 77(c) of the Manual of Regulations for Private Schools (MRPS). 493[18]

Id. at 139-150.

494[19]

Manual of Regulations for Private Schools (1992), Sec. 77(c) provides that expulsion is “an extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary. The penalty may be imposed for acts or offenses constituting gross misconduct, dishonesty, hazing, carrying deadly weapons, immorality, selling and/or possession of prohibited drugs such as marijuana, drug dependency, drunkenness, hooliganism, vandalism, and other serious school offenses such as assaulting a pupil or student or school personnel, instigating or leading illegal strikes or similar concerned activities resulting in the stoppage of classes, preventing or threatening any pupil or student or school personnel from entering the school premises or attending classes or discharging their duties, forging or tampering with school records or school forms, and securing or using forged school records, forms and documents.” 495[20]

Rollo, pp. 151-153. Id. at 150. 497[22] Id. at 1284-1304. 498[23] Id. at 172-178. 499[24] Id. at 180. 500[28] Id. at 208. 496[21]

278

279 On the other hand, private respondents Bungubung and Reverente, and later, Valdes, filed petitions-in-intervention501[29] in Civil Case No. 95-74122. Respondent Judge also issued corresponding temporary restraining orders to compel petitioner DLSU to admit said private respondents. On June 19, 1995, petitioner Sales filed a motion to dismiss502[30] in behalf of all petitioners, except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss503[31] the petitions-in-intervention. On September 20, 1995, respondent Judge issued an Order 504[32] denying petitioners’ (respondents there) motion to dismiss and its supplement, and granted private respondents’ (petitioners there) prayer for a writ of preliminary injunction. Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court.505[34] Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judge’s Order dated September 20, 1995. On September 25, 1995, respondent Judge issued 506[35] a writ of preliminary injunction, ordering d\De La Salle not to implement its decision expelling private respondents. On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari507[37] (CA-G.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judge’s September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995. On April 12, 1996, the CA granted petitioners’ prayer for preliminary injunction. On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private respondents were to be excluded.508[38] The Resolution states: RESOLUTION 181-96 RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V. REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED. RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO IMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V. REVERENTE FROM EXPULSION TO EXCLUSION.509[39] 501[29]

Id. at 210-236. Id. at 237-246. 503[31] Id. at 247-275. 504[32] Id. at 1116-1124. 505[34] Id. at 1563-1571. 506[35] Id. at 114-115. 507[37] Id. at 336-392. 508[38] Manual of Regulations for Private Schools (1992), Sec. 77(b) provides that exclusion is “a penalty in which the school is allowed to exclude or drop the name of the erring pupil or student from the school rolls for being undesirable, and transfer credentials immediately issued.” 502[30]

509[39]

Rollo, pp. 125-126. 279

280

Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several demand letters510[40] to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to promulgate an Order dated September 23, 1996 which states: Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v. DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent request as meritorious, there being no other plain and speedy remedy available, considering the set deadline for enrollment this current TRIMESTER, and in order to prevent further prejudice to his rights as a student of the institution, DLSU, through the proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally enroll, pending the Commission’s Resolution of the instant Motion for Reconsideration filed by DLSU. Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar’s counsel wrote another demand letter to petitioner DLSU.511[42] Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No. 181-96, filed a motion to dismiss512[43] in the CA, arguing that CHED Resolution No. 181-96 rendered the CA case moot and academic. On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss of private respondent Aguilar. On October 28, 1996, petitioners requested transfer of case records to the Department of Education, Culture and Sports (DECS) from the CHED. 513[46] Petitioners claimed that it is the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitating the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS. On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP No. 38719 and the automatic lifting of the writ of preliminary injunction, private respondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction dated September 25, 1995 before respondent RTC Judge of Manila.514[47] On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilar’s urgent motion to reiterate preliminary injunction. The pertinent portion of the order reads: In light of the foregoing, petitioner Aguilar’s urgent motion to reiterate writ of preliminary injunction is hereby granted, and respondents’ motion to dismiss is denied.

510[40]

Id. at 1599-1606. Id. at 1605-1606. 512[43] Id. at 435-438. 513[46] Id. at 518-522. 514[47] Id. at 523-530. 511[42]

280

281 The writ of preliminary injunction dated September 25, 1995 is declared to be in force and effect. Hence, this case. I S S U E S: Can petitioner DLSU invoke its right to academic freedom in support of its decision to expel the private respondents? H E L D: Since De La Salle University is an institution of higher learning, it enjoys academic freedom which includes the right to determine whom to admit as its students. Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint. 515[74] According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.516[75] While La Salle is entitled to invoke academic freedom in its actions against its students, the penalty of expulsion imposed by DLSU on private respondents is disproportionate to their misdeed. It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom and that “the establishment of rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival.”517[94] This power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question.518[95] We agree with respondent CHED that under the circumstances, the penalty of expulsion is grossly disproportionate to the gravity of the acts committed by private respondents Bungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only for few seconds and the victims did not suffer any serious injury. Disciplinary measures especially where they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure.519[96]

515[74]

Miriam College Foundation, Inc. v. Court of Appeals, 401 Phil. 431, 455-456 (2000), citing Tangonan v. Paño, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, 256-257. 516[75]

Regino v. Pangasinan Colleges of Science and Technology, G.R. No. 156109, November 18, 2004, 443 SCRA 56. The “four essential freedoms of a university” were formulated by Mr. Justice Felix Frankfurter of the United States Supreme Court in his concurring opinion in the leading case of Sweezy v. New Hampshire, 354 US 234, 1 L. Ed. 2d 1311, 77 S. Ct. 1203. 517[94]

See note 87, at 663-664. Malabanan v. Ramento, 214 Phil. 319, 330 (1984). 519[96] Rollo, p. 515. 518[95]

281

282 Accordingly, petitioner DLSU may exclude or drop the names of the said private respondents from its rolls for being undesirable, and transfer credentials immediately issued, not EXPEL. Read: 1.THE UNIVERSITY OF THE PHILIPPINES VS. COURT OF APPEALS, February 9, 1993 1-a. THE UNIVERSITY OF THE PHILIPPINES VS. HON. AYSON, August 17, 1989

RUBEN

1-c. UP BOARD OF REGENTS VS. CA, August 31, 1999 Academic Freedom includes the power of a University to REVOKE a degree or honor it has conferred to a student after it was found out that the student’s graduation was obtained through fraud. Academic freedom is given a wide sphere of authority. If an institution of higher learning can decide on who can and cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Academic Freedom— It is an atmosphere in which there prevail the four essential freedom of a university to determine for itself on academic grounds a. who may teach, b. what may be taught, c. how it shall be taught, and d. who may be admitted to study"' (Emphasis supplied; citing Sinco, Philippine Political Law, 491, (1962) and the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]). 1-b) GARCIA VS. FACULTY ADMISSION, 68 SCRA 277 "What is academic freedom? Briefly put, it is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence. It is subject to no control or authority except the control or authority of the rational methods by which truths or conclusions are sought and established in these disciplines." "The personal aspect of freedom consists in the right of each university teacher recognized and effectively guaranteed by society to seek and express the truth as he personally sees it, both in his academic work and in his capacity as a private citizen. Thus the status of the individual university teacher is at least as important, in considering academic freedom, as the status of the institutions to which they belong and through which they disseminate their learning."' 2) 3) 4) 5) 6)

MONTEMAYOR VS. ARANETA UNIVERSITY FOUNDATION VILLAR VS. TIP, April 17, 1985 MALABANAN VS. RAMENTO,129 SCRA 359 BELENA VS. PMI ALCUAZ VS. PSBA, May 2, 1988 6-a) ALCUAZ VS. PSBA, September 29, 1989 (Resolution on the Motion for Reconsideration) Read also the dissenting opinion of Justice Sarmiento 7) TONGONAN VS. PANO, 137 SCRA 246 8) ATENEO VS. CA, 145 SCRA 100 9) GUZMAN VS. NU, 142 SCRA 706 10) ANGELES VS. SISON, 112 SCRA 26 11. Tan vs. CA, 199 SCRA 212 282

283 12. Colegio del Sto. Nino vs. NLRC, 197 SCRA 611 13. Dean Reyes vs. CA, 14. UP vs. CA, February 9, 1993 15. Ateneo vs. Judge Capulong, May 27, 1993 PART XIV ARTICLE XVI - GENERAL PROVISIONS 1. Sections 1-12 Exec. Order No. 264 a. Consent is either Express or Implied b. Express 1. general law aa. C.A. 327 bb. Act 3083, Sec. 1 cc. Art. 2180 par. 6, New Civil Code (R.A. 386) dd. PD 1807, January 16, 1981 2. Special law Read: MERRITT VS. GOVERNMENT, 34 Phil. 311 c. Implied 1. When the government institutes a suit; State immunity from suit; when government officers initiate a suit against a private party, it descends to the level of a private individual susceptible to counterclaims REPUBLIC OF THE PHILIPPINES VS. SANDIGANBAYAN and ROBERTO BENEDICTO, 484 SCRA 119 Garcia, J. When the State through the Presidential Commission on Good Government (PCGG) filed a complaint against a private individual before the Sandiganbayan and thereafter, enters into a compromise agreement , it cannot later on invoke immunity from suit. Where the State itself is no less than the plaintiff in the main case, immunity from suit cannot be invoked because when a state, through its duly authorized officers takes the initiative in a suit against a private party, it thereby descends to the level of a private individual and thus opens itself to whatever counterclaims or defenses the latter may have against it. When the State enters into contract, through its officers or agents, in furtherance of a legitimate aim or purpose and pursuant to a constitutional legislative authority, whereby mutual and reciprocal benefits accrue and rights and obligations arise therefrom, the State may be sued even without its express consent, precisely because by entering into a contract the sovereign descends to the level of the citizen. Its consent to be sued is implied from the very act of entering into such contract, breach of which on its part gives the corresponding right of the other party to the agreement. 2. When the government engages in business or enters into a contract; and 3. Read: 283

284 aa. MINISTERIO VS. CFI of Cebu, 40 SCRA (The government cannot validly invoke State immunity in connection with a suit filed by individuals whose lands were used by the government for roads to collect just compensation of their property. To do so would be to allow the State to cause injustice to its citizen and enrich itself to the prejudice of its people. bb. U.S. VS. RUIZ, 136 SCRA cc. TORIO VS. FONTANILLA, 85 SCRA 599 [Local government units are liable for the death or injuries as a result of the collapse of the stage built by the town for the town fiesta since holding of a town fiesta is in the exercise of its business or proprietary function because there is no law that requires towns to hold an annual town fiesta.] dd. COMMISSIONER VS. SAN DIEGO, 31 SCRA 616 ee. USA vs. JUDGE QUINTO, et al., February 26, 1990 and the cases cited therein ff. Republic of the Philippines vs. Judge Sandoval, March 19, 1993 gg. Wylie vs. Rarang, 209 SCRA 357 hh. Veteans vs. CA, 214 SCRA 286 Immunity from suit; effect of a void contract with the government; unjust enrichment DEPARTMENT OF HEALTH VS. C.V. CANCHELA, et al., 475 SCRA 218 Carpio-Morales, J. Facts: The DOH entered into three owner –consultant agreements with the private respondents covering infrastructure projects for the Baguio General Hospital and Medical Center (BGHMC), the Batangas Regional Hospital and the Corazon L. Montelibano Memorial regional Hospital in Bacolod City. The agreements for the three (3) projects are almost identical. This requires the private respondents to prepare: detailed architectural and engineering design plans; technical specifications and detailed estimates of cost of construction of the hospital, including the preparation of bid documents and requirements; and construction supervision until completion of hand-over and issuance of final certificate. While the Agreements were witnessed by the respective Chief Accountants of the hospitals and were duly approved by the Department of Health, the former did not issue corresponding certificates of availability of funds to cover the professional or consultancy fees. The DOH through is authorized representative, wrote separate letters to the respective chiefs of hospitals confirming the acceptance of private respondents’ complete Contract or Bid Documents for each project and RECOMMENDED THE PAYMENT OF 7.5% OF THE PROJECT ALLOCATION TO PRIVATE RESPONDENTS AS CONSULTANCY FEES. During the construction of the projects, various deficiencies in the performance of the agreed scope of private respondents’ work were allegedly discovered which were not communicated to the private respondents. Due to such alleged deficiencies, petitioner withheld payment of the consultancy fees due to private respondent. Neither did petitioner return the documents, plans, specifications and estimates submitted by private respondents. 284

285 Considering the refusal of the DOH to pay said fees despite repeated demands, the private respondents submitted the dispute to the Construction Industry Arbitration Commission (CIAC). After the presentation of evidence by both parties, the Arbitrator issued his decision dated March 30, 1999 sentencing the DOH to pay the private respondents to pay P3,492,713.00 for services performed and completed for and accepted by DOH. The said amount shall earn interest at 6% per annum from the date of the award until the decision becomes final. Thereafter, the principal and the interest accrued as of such time shall earn interest at 12% per annum. The DOH filed a Petition for Review under Rule 43 before the Court of Appeals but was dismissed for being filed out of time. As such, on motion of the private respondents, the Arbitrator issued a Writ of Execution . Issue: Whether or not the CIAC has jurisdiction to entertain the suit considering that the Agreements, being to promote the heath and well-being of the citizens, is in furtherance of the state’s sovereign and governmental power and therefore, IMMUNE FROM SUIT. Held: In their Memorandum before the Supreme Court, the DOH, for the first time, raised the nullity of the three (3) agreements from the very beginning for failure to include therein a certification of availability of funds which is required under existing laws, particularly the Auditing Code of the Philippines, PD 1445. As such, the fees of the private respondents shall not be based on the project fund allocation but on the basis of reasonable value or on the principle of quantum meruit. While the agreement is indeed void ab initio for violation of existing laws, the DOH is liable to pay the private respondents their consultancy services based on quantum merit to be determined by the Commission on Audit. The invocation of immunity from suit is without merit. This is so because the government has already received and accepted the benefits rendered. To refuse payment as a result of the state’s immunity from suit would be to allow the government to unjustly enrich itself at the expense of another. (Citing Eslao vs. COA, 195 SCRA 730) 4. Tests of Suability for incorporated government Read: aa.

RAYO VS. CFI OF BULACAN, 110 SCRA 456

Even if the National Power Corporation is a government office performing governmental functions [to provide electricity for the entire country and ordinarily, it should have been immune from suit] it can be sued because its charter mandates that it can sue and be sued. bb. ANGAT RIVER IRRIGATION SYSTEM VS. CIR, 102 Phil. 789 5. Tests of Suability for an unincorporated govt. agency government agency Read: 285

286 ab.

NATIONAL AIRPORTS CORP. VS. TEODORO, 91 Phil 203 ac. bb. SANTIAGO VS. REPUBLIC, 87 SCRA 294 (Failure of the government to fulfill its obligation in connection with a lot donated by a private individual to the government entitles the former to file a case for the revocation of the said donation. The State cannot raise the defense of State Immunity since it should not be allowed to profit from its own illegal act of not complying with its obligation. cc. PNB VS. PABALAN, 83 SCRA595 dd. REPUBLIC VS. PURISIMA, 78 SCRA 470 ee. MOBIL PHIL. VS. CUSTOMS ARRASTRE SERVICE, 185 SCRA 1120 ff. BUREAU OF PRINTING VS. BUREAU OF PRINTING EMPLOYEES ASSOCIATION, 1 SCRA 340 hh. METRAN VS. PAREDES, 79 Phil. 819 ii. SANTOS VS. SANTOS, 92 Phil. 281 jj. MALAYAN INSURANCE VS. SMITH BELL, Nov. 17, 1980 kk. SYQUIA VS. ALMEDA LOPEZ, 84 Phil. 31 ll. LIM VS. BROWNELL, JR., 107 Phil. 344 mm. CARABAO INC. VS. SPC, 35 SCRA 224 an. U.S.A. vs. RUIZ, 136 SCRA 487 “jure imperii”---is the same as governmental function; and “jus gestiones”---is the same as business or proprietary function. LOIDA Q. SHAUF and JACOB SHAUF vs. HON. COURT OF APPEALS, DON E. DETWILER and ANTHONY, G.R. No. 90314 November 27, 1990 Petitioner Loida Q. Shauf, a Filipino by origin and married to an American who is a member of the United States Air Force, applied for the vacant position of Guidance Counselor, GS 1710-9, in the Base Education Office at Clark Air Base, for which she is eminently qualified. As found by the trial court, she received a Master of Arts degree from the University of Sto. Tomas, Manila, in 1971 and has completed 34 semester hours in psychology-guidance and 25 quarter hours in human behavioral science; she has also completed all course work in human behavior and counseling psychology for a doctoral degree; she is a civil service eligible; and, more importantly, she had functioned as a Guidance Counselor at the Clark Air Base at the GS 1710-9 level for approximately four years at the time she applied for the same position in 1976. Contrary to her expectations, petitioner Loida Q. Shauf was never appointed to the position occupied by Mrs. Abalateo whose appointment was extended indefinitely by private respondent Detwiler. Feeling aggrieved by what she considered a shabby treatment accorded her, petitioner Loida Q. Shauf wrote the U.S. Civil Service Commission questioning the qualifications of Edward Isakson. Thereafter, said commission sent a communication addressed to private respondent Detwiler, 10 finding Edward Isakson not qualified to the position of Guidance Counselor, GS 1710-9, and requesting that action be taken to remove him from the position and that efforts be made to place him in a position for which he qualifies. Petitioner Loida Q. Shauf avers that said recommendation was ignored by private respondent Detwiler and that Isakson continued to occupy said position of guidance counselor. Petitioner Loida Q. Shauf likewise wrote the Base Commander of Clark Air Base requesting a hearing on her complaint for discrimination. 286

287 Consequently, a hearing was held on March 29, 1978 before the U.S. Department of Air Force in Clark Air Base. Before the Department of Air Force could render a decision, petitioner Loida Q. Shauf filed a complaint for damages, dated April 27, 1978, against private respondents Don Detwiler and Anthony Persi before the Regional Trial Court, Branch LVI at Angeles City, docketed as Civil Case No. 2783, for the alleged discriminatory acts of herein private respondents in maliciously denying her application for the GS 1710-9 position. Private respondents, as defendants in Civil Case No. 2783, filed a motion to dismiss on the ground that as officers of the United States Armed Forces performing official functions in accordance with the powers vested in them under the Philippine-American Military Bases Agreement, they are immune from suit. The motion to dismiss was denied by the trial court. A motion for reconsideration was likewise denied. Petitioners aver that private respondents are being sued in their private capacity for discriminatory acts performed beyond their authority, hence the instant action is not a suit against the United States Government which would require its consent. Private respondents, on the other hand, claim that in filing the case, petitioners sought a judicial review by a Philippine court of the official actuations of respondents as officials of a military unit of the U.S. Air Force stationed at Clark Air Base. The acts complained of were done by respondents while administering the civil service laws of the United States. The acts sued upon being a governmental activity of respondents, the complaint is barred by the immunity of the United States, as a foreign sovereign, from suit without its consent and by the immunity of the officials of the United States Armed Forces for acts committed in the performance of their official functions pursuant to the grant to the United States Armed Forces of rights, power and authority within the bases under the Military Bases Agreement. It is further contended that the rule allowing suits against public officers and employees for unauthorized acts, torts and criminal acts is a rule of domestic law, not of international law. It applies to cases involving the relations between private suitors and their government or state, not the relations between one government and another from which springs the doctrine of immunity of a foreign sovereign. The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article 11, Section 2. This latter provision merely reiterates a policy earlier embodied in the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of the international community. While the doctrine appears to prohibit only sects against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. It must be noted, however, that the rule is not so all-encompassing as to be applicable under all circumstances. It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director of the 287

288 Bureau of Telecommunications, et al. vs. Aligaen etc., et al. "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates crime invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. They state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. The agents and officials of the United States armed forces stationed in Clark Air Base are no exception to this rule. In the case of United States of America, et al. vs. Guinto, etc., et al., ante we declared: It bears stressing at this point that the above observations do not confer on the United States of America blanket immunity for all acts done by it or its agents in the Philippines. Neither may the other petitioners claim that they are also insulated from suit in this country merely because they have acted as agents of the United States in the discharge of their official functions. PART XV ARTICLE XVIII - TRANSITORY PROVISIONS 1. Sections 1-27 2. PCGG Cases Read: a. Republic vs. Sandiganbayan, 200 SCRA 530 a.-1 BATAAN SHIPYARD AND ENGINEERING COMPANY VS. PHILIPPINE COMMISSION ON GOOD GOVERNMENT, May 27, 1987, 150 SCRA 181 b. RICARDO SILVERIO VS. PCGG, G.R. No. 77645, Oct. 26, 1987,155 SCRA 60 c. KWONG, et al vs. PCGG, G.R. No. 79484, December 7, 1987,156 SCRA 222 d. PALM AVENUE REALTY DEVELOPMENT CORPORATION VS. PCGG, G.R. No. 76296, August 31, 1987,153 SCRA 579 e. LIWAYWAY PUBLISHING, INC. VS. PCGG, April 15, 1988,160 SCRA f. PCGG VS. PENA, 159 SCRA 556 g. Executive Order No. 275 ****************************************************

288