1

Contents Arnault v. nazareno digest......................................................................................................................... 1 Bengzon v senate ...................................................................................................................................... 1 Bengzon v senate digest ............................................................................................................................ 7 Senate v. ermita ......................................................................................................................................... 7 Senate v. ermita digest .............................................................................................................................. 9 In re: sabio ............................................................................................................................................... 10 In re: sabio digest .................................................................................................................................... 18 Brillantes v. comelec ............................................................................................................................... 18 Brillantes v. comelec digest .................................................................................................................... 31 Bayani v. Zamora .................................................................................................................................... 32 Bayani v. Zamora digest ......................................................................................................................... 41 Estrada v. dessierto digest ....................................................................................................................... 42 Phil judges assoc v prado ........................................................................................................................ 42 Phil judges assoc v prado digest.............................................................................................................. 46

Arnault v. nazareno digest

Inquiry in Aid of Legislation

This case arose from the legislative inquiry into the acquisition by the

Philippine Government of the Buenavista and Tambobong estates

sometime in 1949. Among the witnesses called to be examined by the

special committee created by a Senate resolution was Jean L. Arnault,

a lawyer who delivered a partial of the purchase price to a

representative of the vendor. During the Senate investigation, Arnault

refused to reveal the identity of said representative, at the same time

invoking his constitutional right against self-incrimination. The

Senate adopted a resolution committing Arnault to the custody of the

Sergeant-at-Arms and imprisoned ―until he shall have purged the

contempt by revealing to the Senate . . . the name of the person to

whom he gave the P440,000, as well as answer other pertinent

questions in connection therewith.‖ Arnault petitioned for a writ of

Habeas Corpus

ISSUE: Can the senate impose penalty against those who refuse to

answer its questions in a congressional hearing in aid of legislation.

HELD: It is the inherent right of the Senate to impose penalty in

carrying out their duty to conduct inquiry in aid of legislation. But it

must be herein established that 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.

Bengzon v senate

G.R. No. 89914 November 20, 1991

JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE

MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA,

KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO

CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE

CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners,

vs.

THE SENATE BLUE RIBBON COMMITTEE AND ITS

MEMBERS, represented by and through the CHAIRMAN, HON.

WIGBERTO TAÑADA, respondents, JOSE S. SANDEJAS,

intervenor.

Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for

petitioners.

Balgos & Perez for intervening petitioner.

Eddie Tamondong and Antonio T. Tagaro for respondents.

PADILLA, J.:p

This is a petition for prohibition with prayer for the issuance of a

temporary restraining order and/or injuective 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.

On 30 July 1987, the Republic of the Philippines, represented by the

Presidential Commission on Good Government (PCGG), assisted by

the Solicitor General, filed with the Sandiganbayan Civil Case No.

0035 (PCGG Case No. 35) entitled "Republic of the Philippines vs.

Benjamin "Kokoy" Romualdez, et al.", for reconveyance, reversion,

accounting, restitution and damages.

The complaint was amended several times by impleading new

defendants and/or amplifying the allegations therein. Under the

Second Amended Complaint, 1 the herein petitioners were impleaded

as party defendants.

The complaint insofar as pertinent to herein petitioners, as

defendants, alleges among others that:

14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez

Romualdez, acting by themselves and/or in unlawful concert with

Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking

undue advantage of their relationship, influence and connection with

the latter Defendant spouses, engaged in devices, schemes and

strategems to unjuestly enrigh themselves at the expense of Plaintiff

and the Filipino people, among others:

(a) Obatained, with the active collaboration of Defendants Sene J.

Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J.

Valdez, Cesar C. Zalamea and Francisco Tantuico, Atty. Jose

Bengzon, Jr. and his law partners, namely: Edilberto S. Narciso, Jr.,

Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and Leonardo C.

Cruz; Jose S. Sandejas and his fellow senior managers of FMMC/PNI

Holdings groups of companies such as Leonardo Gamboa, Vicente T.

Mills, Jr., Jose M. Mantecon, Abelardo S. Termulo, Rex C. Drilon II

and Kurt Bachmann, Jr., control of some of the biggest business

enterprises in the Philippines, such as the Manila Corporation

(MERALCO), Benguet Consolidated and the Philippine Commercial

International Bank (PCI Bank) by employing devious financial

schemes and techniques calculated to require the massive infusion

2

and hemorrhage of government funds with minimum or negligible

"cashout" from Defendant Benjamin Romualdez...

xxx xxx xxx

(m) manipulated, with the support, assistance and collaboration of

Philgurantee officials led by chairman Cesar E.A. Virata and the

Senior managers of FMMC/PNI Holdings, Inc. led by Jose S.

Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr., among

others, the formation of Erectors Holdings, Inc. without infusing

additional capital solely for the purpose of Erectors Incorporated with

Philguarantee in the amount of P527,387,440.71 with insufficient

securities/collaterals just to enable Erectors Inc, to appear viable and

to borrow more capitals, so much so that its obligation with

Philgurantee has reached a total of more than P2 Billion as of June

30, 1987.

(n) at the onset of the present Administration and/or within the week

following the February 1986 People's Revolution, in conspiracy with,

supoort, assistance and collaboration of the abovenamed lawyers of

the Bengzon Law Offices, or specifically Defendants Jose F.S.

Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto

S. Narciso, Jr., manipulated, shcemed, and/or executed a series of

devices intended to conceal and place, and/or for the purpose of

concealing and placing, beyond the inquiry and jurisdiction of the

Presidential Commission on Good Government (PCGG) herein

Defendant's individual and collective funds, properties, and assets

subject of and/or suited int he instant Complaint.

(o) manuevered, with the technical know-how and legalitic talents of

the FMMC senior manager and some of the Bengzon law partners,

such as Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr.,

Amando V. Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz,

the purported sale of defendant Benjamin Romualdez's interests in

the (i) Professional Managers, (ii) A & E International Corporation

(A & E), (iii) First Manila Managerment Corporation (FMMC), (iv)

Philippine World Travel Inc. (PWTI) and its subsidiaries consisting

of 36 corporations in all, to PNI Holdings, Inc. (wjose purported

incorporations are all members of Atty. Jose F.S. Bengzon's law firm)

for only P5 million on March 3, 1986 or three days after the creation

of the Presidential Commission on Good Government on February

28, 1986, for the sole purpose of deceiving and preempting the

Government, particularly the PCGG, and making it appear that

defendant Benjamin Romualdez had already divested himself of his

ownership of the same when in truth and in fact, his interests are well

intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some

of his law partners, together with the FMMC senior managers who

still control and run the affiars of said corporations, and in order to

entice the PCGG to approve the said fictitious sale, the above-named

defendants offered P20 million as "donation" to the Government;

(p) misused, with the connivance, support and technical assitance of

the Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as

legal counsel, together with defendants Cesar Zalamea, Antonio

Ozaeta, Mario D. Camacho amd Senen J. Gabaldon as members of

the Board of Directors of the Philippine Commercial International

bank (PCIB), the Meralco Pension Fund (Fund, for short) in the

amount of P25 million by cuasing it to be invested in the PCIB and

through the Bank's TSG, assigned to PCI Development and PCI

Equity at 50% each, the Fund's (a) 8,028.011 common shares in the

Bank and (b) "Deposit in Subscription" in the amount of

P4,929.972.50 but of the agreed consideration of P28 million for the

said assignment, PCI Development and PCI Equity were able to pay

only P5,500.00 downpayment and the first amortization of

P3,937,500.00 thus prompting the Fund to rescind its assignment, and

the consequent reversion of the assigned brought the total

shareholding of the Fund to 11,470,555 voting shares or 36.8% of the

voting stock of the PCIB, and this development (which the

defendants themselves orchestrated or allowed to happen) was used

by them as an excuse for the unlawful dismantling or cancellation of

the Fund's 10 million shares for allegedly exceeding the 30-percent

ceiling prescribed by Section 12-B of the General Banking Act,

although they know for a fact that what the law declares as unlawful

and void ab initio are the subscriptions in excess of the 30% ceiling

"to the extent of the excess over any of the ceilings prescribed ..." and

not the whole or entire stockholding which they allowed to stay for

six years (from June 30, 1980 to March 24, 1986);

(q) cleverly hid behind the veil of corporate entity, through the use of

the names and managerial expertise of the FMMC senior manager

and lawyers identified as Jose B. Sandejas, Leonardo Gamboa,

Vicente T. Mills, Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose

M. Mantecon, Rex C. Drilon II, Kurt Bachmann, Jr. together with the

legal talents of corporate lawyers, such as Attys. Jose F.S. Bengzon,

Jr., Jose V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C.

Cruz, the ill-gotten wealth of Benjamin T. Romualdez including,

among others, the 6,229,177 shares in PCIB registered in the names

of Trans Middle East Phils. Equities, Inc. and Edilberto S. Narciso,

Jr. which they refused to surrender to PCGG despite their disclosure

as they tried and continue to exert efforts in getting hold of the same

as well as the shares in Benguet registered in the names of Palm

Avenue Holdings and Palm Avenue Realty Development Corp.

purportedly to be applied as payment for the claim of P70 million of

a "merger company of the First Manila Managerment Corp. group"

supposedly owned by them although the truth is that all the said firms

are still beneficially owned by defendants Benjamin Romualdez.

xxx xxx xxx

On 28 September 1988, petitioner (as defendants) filed their

respective answers. 2 Meanwhile, from 2 to 6 August 1988,

conflicting reports on the disposition by the PCGG of the

"Romualdez corporations" were carried in various metropolitan

newspapers. Thus, one newspaper reported that the Romuladez firms

had not been sequestered because of the opposition of certain PCGG

officials who "had worked prviously as lawyers of the Marcos crony

firms." Another daily reported otherwise, while others declared that

on 3 March 1986, or shortly after the EDSA February 1986

revolution, the Romualdez companies" were sold for P5 million,

without PCGG approval, to a holding company controlled by

Romualdez, and that Ricardo Lopa, the President's brother-in-law,

had effectively taken over the firms, even pending negotiations for

the purchase of the corporations, for the same price of P5 million

which was reportedly way below the fair value of their assets. 3

On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan

Ponce Enrile delivered a speech "on a matter of personal privilege"

before the Senate on the alleged "take-over personal privilege" before

the Senate on the alleged "take-over of SOLOIL Incorporated, the

flaship of the First Manila Management of Companies (FMMC) by

Ricardo Lopa" and called upon "the Senate to look into the possible

violation of the law in the case, particularly with regard to Republic

Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4

On motion of Senator Orlando Mercado, the matter was referred by

the Senate to the Committee on Accountability of Public Officers

(Blue Ribbon Committee). 5 Thereafter, the Senate Blue Ribbon

Committee started its investigation on the matter. Petitioners and

Ricardo Lopa were subpoenaed by the Committee to appear before it

3

and testify on "what they know" regarding the "sale of thirty-six (36)

corporations belonging to Benjamin "Kokoy" Romualdez."

At the hearing held on 23 May 1989, Ricardo Lopa declined to testify

on the ground that his testimony may "unduly prejudice" the

defendants in Civil Case No. 0035 before the Sandiganbayan.

Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing

his constitutional right to due process, and averring that the publicity

generated by respondents Committee's inquiry could adversely affect

his rights as well as those of the other petitioners who are his co-

defendants in Civil Case No. 0035 before the Sandiganbayan.

The Senate Blue Ribbon Committee, thereupon, suspended its inquiry

and directed the petitioners to file their memorandum on the

constitutional issues raised, after which, it issued a resolution 6 dated

5 June 1989 rejecting the petitioner's plea to be excused from

testifying, and the Committee voted to pursue and continue its

investigation of the matter. Senator Neptali Gonzales dissented. 7

Claiming that the Senate Blue Ribbon Committee is poised to

subpoena them and required their attendance and testimony in

proceedings before the Committee, in excess of its jurisdiction and

legislative purpose, in clear and blatant disregard of their

constitutional rights, and to their grave and irreparable damager,

prejudice and injury, and that there is no appeal nor any other plain,

speedy and adequate remedy in the ordinary course of law, the

petitioners filed the present petition for prohibition with a prayer for

temporary restraning order and/or injunctive relief.

Meanwhile, one of the defendants in Civil Case No. 0035 before the

Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for

intervention, 8 which the Court granted in the resolution 9 of 21

December 1989, and required the respondent Senate Blue Ribbon

Committee to comment on the petition in intervention. In

compliance, therewith, respondent Senate Blue Ribbon Committee

filed its comment 10 thereon.

Before discussing the issues raised by petitioner and intervenor, we

will first tackle the jurisdictional question raised by the respondent

Committee.

In its comment, respondent Committee claims that this court cannot

properly inquire into the motives of the lawmakers in conducting

legislative investigations, much less cna it enjoin the Congress or any

its regular and special commitees — like what petitioners seek —

from making inquiries in aid of legislation, under the doctrine of

separation of powers, which obtaines in our present system of

government.

The contention is untenable. In Angara vs. Electoral Commission, 11

the Court held:

The separation of powers is a fundamental principle in our system of

government. It obtains not hrough express provision but by actual

division in our Constitution. Each department of the government has

exclusive cognizance of matters wihtin its jurisdiction, and is

supreme within its own sphere. But it does not follow from the fact

that the three powers are to be kept separate and distinct that the

Constitution intended them to be absolutely unrestrained and

independent of each other. The Constitution has provided for an

elaborate system of checks and balances to secure coordination in the

workings of the various departments of the government...

xxx xxx xxx

But in the main, the Constitution has blocked out with deft strokes

and in bold lines, allotment of power to the executive, the legislative

and the judicial departments of the government. The ovelapping and

interlacing of funcstions and duties between the several deaprtments,

however, sometimes makes it hard to say just where the political

excitement, the great landmarks of the Constitution are apt to be

forgotten or marred, if not entirely obliterated, in cases of conflict,

the judicial departments is the only constitutional organ which can be

called upon to determine the proper allocation of powers between the

several departments and among the integral or constituent units

thereof.

xxx xxx xxx

The Constitution is a definition of the powers of government. Who is

to determine the nature, scope and extent of such powers? The

Constitution itself has provided for the instrumentality of the

judiciary as the rational way. And when the judiciary mediates to

allocate constitutional boundaries; it does not assert any superiority

over the other departments; it does not inr eality nullify or invalidate

an act of the legislature, but only asserts the solemn and sacred

obligation assigned to it by tyhe Constitution to determine conflicting

claims of authority under the Constitution and to established for the

parties in an actual controversy the rights which that instrument

secures and guarantess to them. This is in thruth all that is involved in

what is termed "judicial supremacy" which properly is the power of

judicial review under the Constitution. Even the, this power of

judicial review is limited to actual cases and controversies to be

exercised after full opportunity of argument by the parties, and

limited further to the constitutional question raised or the very lis

mota presented. Any attempt at abstraction could only lead to

dialectics and barren legal questions and to sterile conclusions

unrelated to actualities. Narrowed as its function is in this manner,

the judiciary does not pass upon questions of wisdom, justice or

expediency of legislation. More thatn that, courts accord the

presumption of constitutionality to legislative enactments, not only

because the legislature is presumed to abide by the Constitution but

also becuase the judiciary in the determination of actual cases and

controversies must reflect the wisdom and justice of the people as

expressed through their representatives in the executive and

legislative departments of the government.

The "allocation of constituional boundaries" is a task that this Court

must perfomr under the Constitution. Moreowever, as held in a recent

case, 12 "(t)he political question doctrine neither interposes an

obstacle to judicial determination of the rival claims. The jurisdiction

to delimit constitutional boundaries has been given to this Court. It

cannot abdicate that obligation mandated by the 1987 Constitution,

although said provision by no means does away with kthe

applicability of the principle in appropriate cases." 13

The Court is thus of the considered view that it has jurisdiction over

the present controversy for the purpose of determining the scope and

extent of the power of the Senate Blue Ribbon Committee to conduct

inquiries into private affirs in purported aid of legislation.

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

4

Committee to inquire into; and (3) the inquiry violates their right to

due process.

The 1987 Constition expressly recognizes the power of both houses

of Congress to conduct inquiries in aid of legislation. 14 Thus,

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. 15

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 exervise 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 tis 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.

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:

Mr. President, I rise this afternnon on a matter of personal privilege;

the privilege being that I received, Mr. President, a letter dated

September 4, 1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby

Lopa, wherein he denied categorically that he has taken over the First

Manila Management Group of Companies which includes SOLOIL

Incorporated.

xxx xxxx xxx

In answer to Mr. Lopa, I will quote pertinent portions from an

Official Memorandum to the Presidential Commission of Good

Government written and signed by former Governor, now

Congressman Jose Ramirez, in his capacity as head of the PCGG

Task Force for Region VIII. In his memorandum dated July 3, 1986,

then Governor Ramirez stated that when he and the members of his

task force sought to serve a sequestration order on the management of

SOLOIL in Tanauan, Leyte, management officials assured him that

relatives of the President of the Philippines were personally

discussing and representing SOLOIL so that the order of

sequestration would be lifted and that the new owner was Mr.

Ricardo A. Lopa.

I will quote the pertinent portions in the Ramire's memorandum.

The first paragraph of the memorandum reads as follows and I quote,

Mr. President:

"Our sequestration work of SOLOIL in Tanauan, Leyte was not

heeded by management because they said another representation was

being made to this Commission for the ventual lifting of our

sequestrationorder. They even assured us that Mr. Ricardo Lopa and

Peping Cojunangco were personally discussing and representing

SOLOIL, so the order of sequestration will finally be lifted. While we

attempted to carry on our order, management refused to cooperate

and vehemently turned down our request to make available to us the

records of the company. In fact it was obviously clear that they will

meet us with forcethe moment we insist on doing normally our

assigned task. In view of the impending threat, and to avoid any

untoward incident we decided to temporarily suspend our work until

there is a more categorical stand of this Commission in view of the

seemingly influential represetation being made by SOLOIL for us not

to continue our work."

Another pertinent portion of the same memorandum is paragraph

five, which reads as follows, and I quote Mr. President:

"The President, Mr. Gamboa, this is, I understand, the President of

SOLOIL, and the Plant Superintendent, Mr. Jimenez including their

chief counsel, Atty. Mandong Mendiola are now saying that there

have been divestment, and that the new owner is now Mr. Ricardo

Lopa who according to them, is the brother-in-law of the President.

They even went further by telling us that even Peping Cojuangco

who we know is the brother of her excellency is also interested in the

ownership and management of SOLOIL. When he demanded for

supporting papers which will indicate aforesaid divestment, Messrs.

Gamboa, Jimenez and Mendiola refused vehemently to submit these

papers to us, instead they said it will be submitted directly to this

Commission. To our mind their continuous dropping of names is not

good for this Commission and even to the President if our dersire is

to achieve respectability and stability of the government."

The contents of the memorandum of then Governor and now

Congressman Jose Ramirez were personally confirmed by him in a

news interview last September 7, 1988.

5

xxx xxxx xxx

Also relevant to this case, Mr. President, is a letter of Mr. Ricardo

Lopa himself in August 11, 1988 issue of the newspaper Malaya

headlined "On Alleged Takeover of Romualdez Firms."

Mr. Lopa states in the last paragraph of the published letter and I

quote him:

12. As of this writing, the sales agreement is under review by the

PCGG solely to determine the appropriate price. The sale of these

companies and our prior rigtht to requires them have never been at

issue.

Perhaps I could not make it any clearer to Mr. Lopa that I was not

really making baseless and malicious statements.

Senator Enrile concluded his privilege speech in the following tenor:

Mr. President, it may be worthwhile for the Senate to look into the

possible violation of the law in the case particularly with regard to

Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act,

Section 5 of which reads as follows and I quote:

Sec. 5. Prohibition on certain relatives. — It shall be unlawful for the

spouse or for nay relative, by consanguinity or affinity, within the

third civil degree, of the President of the Philippines, the Vice-

President of the Philippines, the President of the Senate, or the

Speaker of the House of Representatives, to intervene directly or

indirectly, in any business, transaction, contract or application with

the Government: Provided, that this section shall not apply to any

person who prior to the assumption of office of any of the above

officials to whom he is related, has been already dealing with the

Government along the same line of business, nor to any transaction,

contract or application filed by him for approval of which is not

discretionary on the part of the officials concerned but depends upon

compliance with requisites provided by law, nor to any act lawfully

performed in an official capacity or in the exercise of a profession.

Mr. President, I have done duty to this Senate and to myself. I leave it

to this august Body to make its own conclusion.

Verily, the speech of Senator Enrile contained no suggestion of

contemplated legislation; he merely called upon the Senate to look

into a possible violation of Sec. 5 of RA No. 3019, otherwise known

as "The Anti-Graft and Corrupt Practices Act." I other words, the

purpose of the inquiry to be conducted by respondent Blue Ribbon

commitee was to find out whether or not the relatives of President

Aquino, particularly Mr. ricardo Lopa, had violated the law in

connection with the alleged sale of the 36 or 39 corporations

belonging to Benjamin "Kokoy" Romualdez to the Lopaa Group.

There appears to be, therefore, no intended legislation involved.

The Court is also not impressed with the respondent Committee's

argument that the questioned inquiry is to be conducted pursuant to

Senate Resolution No. 212. The said resolution was introduced by

Senator Jose D. Lina in view of the representaions made by leaders of

school youth, community groups and youth of non-governmental

organizations to the Senate Committee on Youth and Sports

Development, to look into the charges against the PCGG filed by

three (3) stockholders of Oriental petroleum, i.e., that it has adopted a

"get-rich-quick scheme" for its nominee-directors in a sequestered oil

exploration firm.The pertinent portion of Senate Resolution No. 212

reads as follows:

xxx xxx xxx

WHEREAS, recent developments have shown that no less than the

Solicitor-General has stated that the PCGG Chairman and at least

three Commissioners should resign and that the agency should rid

itself of "ineptness, incompetence and corruption" and that the

Sandiganbayan has reportedly ordered the PCGG to answer charges

filed by three stockholders of Oriental Petroleum that it has adopted a

"get-rich-quick scheme" for its nominee-directors in a sequestered oil

exploration firm;

WHEREAS, leaders of school youth, community groups and youth of

non-governmental organization had made representations to the

Senate Committee on Youth and Sports Development to look into the

charges against the PCGG since said agency is a symbol of the

changes expected by the people when the EDSA revolution took

place and that the ill-gotten wealth to be recovered will fund priority

projects which will benefit our people such as CARP, free education

in the elementary and secondary levels reforestration, and

employment generation for rural and urban workers;

WHEREAS, the government and the present leadeship must

demonstrate in their public and private lives integrity, honor and

efficient management of government services lest our youth become

disillusioned and lose hope and return to an Idelogy and form of

government which is repugnant to true freedom, democratic

participation and human rights: Now, therefore, be it.

Resolved by the Senate, That the activities of the Presidential

Commission on Good Government be investigated by the appropriate

Committee in connection with the implementation of Section 26,

Article XVIII of the Constitution. 19

Thus, the inquiry under Senate Resolution No. 212 is to look into the

charges against the PCGG filed by the three (3) stockholders of

Oriental Petroleum in connection with the implementation of Section

26, Article XVIII of the Constitution.

It cannot, therefore, be said that the contemplated inquiry on the

subject of the privilege speech of Senator Juan Ponce Enrile, i.e., the

alleged sale of the 36 (or 39) corporations belonging to Benjamin

"Kokoy" Romualdez to the Lopa Group is to be conducted pursuant

to Senate Resolution No. 212 because, firstly, Senator Enrile did not

indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the

herein petitioners are connected with the government but are private

citizens.

It appeals, therefore, that the contemplated inquiry by respondent

Committee is not really "in aid of legislation" becuase 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 ralatives 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 held:

... The power of congress to conduct investigations in inherent in the

legislative process. That power is broad. it encompasses inquiries

6

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 asis this power of inquiry, it is not unlimited. There is no

general authority to expose the private affairs ofindividuals 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 soly for the

personal aggrandizement of the investigators or to "punish" those

investigated are indefensible. (emphasis supplied)

It can not be overlooked that when respondent Committee decide to

conduct its investigation of the petitioners, the complaint in Civil No.

0035 had already been filed with the Sandiganbayan. A perusal of

that complaint shows that one of its principal causes of action against

herein petitioners, as defendants therein, is the alleged sale of the 36

(or 39) corporations belonging to Benjamin "Kokoy" Romualdez.

Since the issues in said complaint had long been joined by the filing

of petitioner's respective answers thereto, the issue sought to be

investigated by the respondent Commitee is one over which

jurisdiction had been acquired by the Sandiganbayan. In short, the

issue had been pre-empted by that court. To allow the respondent

Committee to conduct its own investigation of an issue already before

the Sandiganbayan would not only pose the possibility of conflicting

judgments betweena legislative commitee and a judicial tribunal, but

if the Committee's judgment were to be reached before that of the

Sandiganbayan, the possibility of its influence being made to bear on

the ultimate judgment of the Sandiganbayan can not be discounted.

In fine, for the rspondent Committee to probe and inquire into the

same justiciable controversy already before the Sandiganbayan,

would be an encroachment into the exclusive domain of judicial

jurisdiction that had much earlier set in. In Baremblatt vs. United

States, 21 it was held that:

Broad as it is, the power is not, howevern, 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 suplant the Executive in what exclusively

belongs to the Executive. ...

Now to another matter. It has been held that "a congressional

committee's right to inquire is 'subject to all relevant limitations

placed by the Constitution on governmental action,' including "'the

relevant limitations of the Bill of Rights'." 22

In another case —

... the mere semblance of legislative purpose would not justify an

inquiry in the face of the Bill of Rights. The critical element is the

exeistence of, and the weight to be ascribed to, the interest of the

Congress in demanding disclosures from an unwilling witness. We

cannot simply assume, however, that every congressional

investigation is justified by a public need that over-balances any

private rights affected. To do so would be to abdicate the

responsibility placed by the Constitution upon the judiciary to insure

that the Congress does not unjustifiably encroah upon an individual's

right to privacy nor abridge his liberty of speech, press, religion or

assembly. 23

One of the basic rights guaranteed by the Constitution to an

individual is the right against self-incrimination. 24 Thir right

constured as the right to remain completely silent may be availed of

by the accused in a criminal case; but kit may be invoked by other

witnesses only as questions are asked of them.

This distinction was enunciated by the Court in Romeo Chavez vs.

The Honorable Court of Appeals, et al. 25 thus —

Petitioner, as accused, occupies a different tier of protection from an

ordinary witness. Whereas an ordinary witness may be compelled to

take the witness stand and claim the privilege as each question

requiring an incriminating answer is hot at him, an accused may

altother refuse to take the witness stand and refuse to answer any all

questions.

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

It was held that:

We did not therein state that since he is not an accused and the case is

not a criminal case, Cabal cannot refuse to take the witness stand and

testify, and that he can invoke his right against self-incrimination

only when a question which tends to elicit an answer that will

incriminate him is propounded to him. Clearly then, it is not the

characeter of the suit involved but the nature of the proceedings that

controls. The privilege has consistenly been held to extend to all

proceedings sanctioned by law and to all cases in which punishment

is sought to be visited upon a witness, whether a party or not.

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 evidenc before it, it is only becuase 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.

WHEREFORE, the petition is GRANTED. The Court holds that,

under the facts, including the circumtance that petitioners are

presently impleaded as defendants in a case before the

Sandiganbayan, which involves issues intimately related to the

subject of contemplated inquiry before the respondet Committee, the

respondent Senate Blue Ribbon Committee is hereby enjoined from

compelling the petitioners and intervenor to testify before it and

produce evidence at the said inquiry.

SO ORDERED.

7

Bengzon v senate digest

203 SCRA 767 – Political Law – Constitutional Law – The

Legislative Department – Inquiry in Aid of Legislation – When not

Allowed

It was alleged that Benjamin ―Kokoy‖ Romualdez and his wife

together with the Marcoses unlawfully and unjustly enriched

themselves at the expense of the Filipino people. That they obtained

with the help of the Bengzon Law Office and Ricardo Lopa – Cory‘s

brother in law, among others, control over some of the biggest

business enterprises in the country including MERALCO, PCI Bank,

Shell Philippines and Benguet Consolidated Mining Corporation.

Senator Juan Ponce Enrile subsequently delivered a privilege speech

alleging that Lopa took over various government owned corporations

which is in violation of the Anti-Graft and Corrupt Practices Act.

Contained in the speech is a motion to investigate on the matter. The

motion was referred to the Committee on Accountability of Public

Officers or the Blue Ribbon Committee. After committee hearing,

Lopa refused to testify before the committee for it may unduly

prejudice a pending civil case against him. Bengzon likewise refused

invoking his right to due process. Lopa however sent a letter to Enrile

categorically denying his allegations and that his allegations are

baseless and malicious.

Enrile subsequently took advantage of the Senate‘s privilege hour

upon which he insisted to have an inquiry regarding the matter. The

SBRC rejected Lopa‘s and Bengzon‘s plea.

Claiming that the Senate Blue Ribbon Committee is poised to

subpoena them and require their attendance and testimony in

proceedings before the Committee, in excess of its jurisdiction and

legislative purpose, in clear and blatant disregard of their

constitutional rights, and to their grave and irreparable damage,

prejudice and injury, and that there is no appeal nor any other plain,

speedy and adequate remedy in the ordinary course of law, Bengzon

et al filed a petition for prohibition with a prayer for temporary

restraining order and/or injunctive relief against the SBRC.

ISSUE: Whether or not the inquiry sought by the SBRC be granted.

HELD: No, the inquiry cannot be given due course. The speech of

Enrile contained no suggestion of contemplated legislation; he merely

called upon the Senate to look into a possible violation of Sec. 5 of

RA No. 3019, otherwise known as ―The Anti-Graft and Corrupt

Practices Act.‖ In other words, the purpose of the inquiry to be

conducted by the Blue Ribbon Committee was to find out whether or

not the relatives of Cory, particularly Lopa, had violated the law in

connection with the alleged sale of the 36 or 39 corporations

belonging to Kokoy to the Lopa Group. There appears to be,

therefore, no intended legislation involved. Hence, the contemplated

inquiry by the SBRC is not really ―in aid of legislation‖ because it is

not related to a purpose within the jurisdiction of Congress, since the

aim of the investigation is to find out whether or not the relatives of

the President or Mr. Ricardo Lopa had violated Section 5 of 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.

Senate v. ermita

Republic of the Philippines

SUPREME COURT Manila

EN BANC

G.R. No. 169777 July 14, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN

M. DRILON, in his capacity as Senate President, JUAN M.

FLAVIER, in his capacity as Senate President Pro Tempore,

FRANCIS N. PANGILINAN, in his capacity as Majority Leader,

AQUILINO Q. PIMENTEL, JR., in his capacity as Minority

Leader, SENATORS RODOLFO G. BIAZON, “COMPANERA”

PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA

“LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE,

RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO

S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G.

RECTO, and MAR ROXAS, Petitioners,

vs.

EDUARDO R. ERMITA, in his capacity as Executive Secretary

and alter-ego of President Gloria Macapagal-Arroyo, and anyone

acting in his stead and in behalf of the President of the

Philippines, Respondents.

G.R. No. 169659 July 14, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR.,

Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep.

RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO

CASINO, Rep. JOEL VIRADOR, COURAGE represented by

FERDINAND GAITE, and COUNSELS FOR THE DEFENSE

OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS

BALBIN, Petitioners,

vs.

EDUARDO ERMITA, in his capacity as Executive Secretary and

alter-ego of President Gloria Macapagal-Arroyo, Respondent.

G.R. No. 169660 July 14, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.

EDUARDO R. ERMITA, in his capacity as Executive Secretary,

AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense,

and GENEROSO S. SENGA, in his capacity as AFP Chief of

Staff, Respondents.

8

G.R. No. 169667 July 14, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.

HON. EDUARDO R. ERMITA, in his capacity as Executive

Secretary, Respondent.

G.R. No. 169834 July 14, 2006

PDP- LABAN, Petitioner,

vs.

EXECUTIVE SECRETARY EDUARDO R.

ERMITA, Respondent.

G.R. No. 171246 July 14, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,

ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA

A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P.

LEGASPI, J. B. JOVY C. BERNABE, BERNARD L.

DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED

BAR FOR THE PHILIPPINES, Petitioners,

vs.

HON. EXECUTIVE SECRETARY EDUARDO R.

ERMITA, Respondent.

R E S O L U T I O N

CARPIO MORALES, J.:

Pending consideration are 1) the Motion for Reconsideration dated

May 18, 2006 filed by respondents, praying that the Decision

promulgated on April 20, 2006 (the Decision) be set aside, and 2) the

Motion for Reconsideration dated May 17, 2006 filed by petitioner

PDP-Laban in so far as the Decision held that it was without the

requisite standing to file the petition in G.R. No. 169834.

Petitioners Senate of the Philippines et al., Alternative Law Groups,

Inc., Francisco I. Chavez, and PDP-Laban filed their respective

Comments to respondents‘ Motion for Reconsideration.

Respecting PDP-Laban‘s Motion for Reconsideration, petitioners

Senate of the Philippines et al. and petitioner Chavez endorse the

same. Respondents, however, pray for its denial.

In their Motion for Reconsideration, respondents argue that the

Senate Rules of Procedure Governing Inquiries in Aid of Legislation

has not been published, hence, the President may properly prohibit

the appearance of executive officials before Congress.

Even assuming arguendo that the said Rules of Procedure had not

been published, such does not have any bearing on the validity of any

of the provisions of E.O. 464. The prohibition under Section 1 of

E.O. 464 has to do with the question hour, not with inquiries in aid of

legislation. As to the prohibition authorized by Section 3 in relation

to Section 2(b), the basis thereof is executive privilege, not the

purported failure to publish rules of procedure.

If the President would prohibit executive officials from appearing

before Congress on the ground of lack of published rules of

procedure, such would not be an exercise of executive privilege, but

simply a claim to protection under the due process clause – a right

which the President has in common with any other citizen. The claim

to such protection is not based on the confidential nature of the

information held by the official concerned, as in the case of executive

privilege, but on the defective nature of the legislative inquiry

itself. The prohibition under Section 3 in relation to Section 2(b) of

E.O. 464, however, is based solely on executive privilege, not on any

alleged defect in the inquiry arising from a lack of published rules of

procedure.

Respondents go on to argue that the President‘s invocation of

executive privilege is ―for practical purposes,‖ in that since the

President would be in no position to raise an objection the moment a

question is asked by Congress, she must be allowed to prohibit the

appearance of the official concerned, at least until she is able to

thoroughly discuss the matter with the said official. For, so

respondents contend, ―once the information has been coerced out of

the official, there is no turning back, and the damage that could result

might be devastating to the functioning of government.‖

The tentative prevention of an official from appearing before

Congress pending discussion of the matter on inquiry with the

President cannot, however, be properly deemed an exercise of

executive privilege, not even one ―for practical purposes.‖ Any such

discussion is meant precisely to allow the President to determine

whether the information sought falls under the privilege. Before such

determination, the claim of privilege could only be based on mere

speculation that the information sought might be confidential in

nature. Certainly, Congress cannot be bound by such a tenuous

invocation of the privilege.

The executive branch, nonetheless, need not be apprehensive that it

might not be able to invoke executive privilege in time to prevent

disclosures of legitimately confidential information. As this Court

stated in the Decision, the President and the Executive Secretary must

be given fair opportunity to determine whether the matter under

legislative investigation calls for a claim of privilege. To secure this

fair opportunity, the executive branch need not resort to a

precautionary claim of privilege like that proffered by

respondents. The President may, instead, direct the official

concerned to ask Congress for reasonable time to discuss with her the

subject matter of the investigation.

Section 3 in relation to 2(b) of E.O. 464, however, is far from being a

mere directive to officials summoned by Congress to ask for time to

confer with the President. It is an authorization for implied claims of

privilege. As such, the criteria for evaluating its validity must be

those for claims of executive privilege. On the basis of such criteria,

the Court found the implied claim authorized under Section 3 in

relation to Section 2(b) of E.O. 464 to be defective.

9

In fine, no argument in respondents‘ Motion for Reconsideration

merits a reversal or modification of the Decision.

As for its Motion for Reconsideration, petitioner PDP-Laban avers

that there is no fundamental difference between it and

petitioner Bayan Muna to justify their unequal treatment since both of

them have members in Congress. It claims, moreover, that all its

members are taxpayers and Filipino citizens whose right to

information was, as held in the Decision, violated by E.O. 464.

There are, however, fundamental distinctions between PDP-

Laban and Bayan Muna which call for this Court‘s contrasting

rulings with regard to their standing.

While both parties have members in Congress, PDP-Laban,

unlike Bayan Muna, is not represented therein as a party-list

organization. The PDP-Laban members in Congress were elected to

represent, not their party, but their constituents, i.e., their legislative

district in the case of representatives, or the nation at large in the case

of senators. The Bayan Muna members in Congress, on the other

hand, were elected precisely to represent their party. In fact, in light

of the party-list system, the representatives from Bayan Muna may be

said to have been elected only indirectly, since it

was Bayan Muna itself, as a party, which was voted for in the last

elections where it received enough votes to entitle it to three seats in

the House of Representatives. This, again, contrasts with the situation

of the PDP-Laban members in Congress who were all elected in their

individual capacities.

Indeed, the rights of the Bayan Muna representatives are so

intertwined with their party‘s right to representation in Congress that,

in the event they change their party affiliation during their term of

office, they would have to forfeit their seat– a rule which clearly does

not apply to the PDP-Laban members in Congress.

Bayan Muna is thus entitled to participate in the legislative process in

a way that cannot be said of PDP-Laban.

With regard to PDP-Laban‘s assertion that it consists of taxpayers

and Filipino citizens, suffice it to state that its Petition did not assert

this as a ground for its standing to sue. It merely alleged that E.O.

464 hampers its legislative agenda and that the issues involved are of

transcendental importance, which points were already addressed in

the Decision.

If PDP-Laban intended to sue as an organization of citizens in pursuit

of the right to information of such citizens, it did not so state in its

petition. As such, the Court could not be satisfied that its

participation in the controversy would ensure ―concrete adverseness

which sharpens the presentation of issues upon which the court so

largely depends for illumination of difficult constitutional questions.‖

A final point. Petitioners Senate of the Philippines et al., by

Manifestation dated April 25, 2006, called this Court‘s attention to

the inadvertent omission, in the title of the petition in G.R. No.

169777, of the name of Senator Manuel B. Villar, Jr. The

Manifestation reiterated an earlier Manifestation dated October 24,

2005requesting that Senator Villar‘s name be included in the title of

said petition. Finding the Manifestations well-taken, the title of G.R.

No. 169777 is hereby amended to reflect the name of

Senator Villar as one of the petitioners.

WHEREFORE, the MOTION FOR RECONSIDERATION of

Respondents dated May 18, 2006 and the MOTION FOR

RECONSIDERATION of Petitioner PDP-Laban dated May 17,

2006 are DENIED WITH FINALITY for lack of merit. The title of

G.R. No. 169777 is amended to include the name Senator Manuel B.

Villar, Jr. as one of the petitioners.

SO ORDERED.

Senate v. ermita digest

495 SCRA 170 – Political Law – Constitutional Law – Legislative

Branch – Question Hour – Constitutionality of E.O. 464

In 2005, scandals involving anomalous transactions about the North

Rail Project as well as the Garci tapes surfaced. This prompted the

Senate to conduct a public hearing to investigate the said anomalies

particularly the alleged overpricing in the NRP. The investigating

Senate committee issued invitations to certain department heads and

military officials to speak before the committee as resource persons.

Ermita submitted that he and some of the department heads cannot

attend the said hearing due to pressing matters that need immediate

attention. AFP Chief of Staff Senga likewise sent a similar letter.

Drilon, the senate president, excepted the said requests for they were

sent belatedly and arrangements were already made and scheduled.

Subsequently, GMA issued EO 464 which took effect immediately.

EO 464 basically prohibited Department heads, Senior officials of

executive departments who in the judgment of the department heads

are covered by the executive privilege; Generals and flag officers of

the Armed Forces of the Philippines and such other officers who in

the judgment of the Chief of Staff are covered by the executive

privilege; Philippine National Police (PNP) officers with rank of

chief superintendent or higher and such other officers who in the

judgment of the Chief of the PNP are covered by the executive

privilege; Senior national security officials who in the judgment of

the National Security Adviser are covered by the executive privilege;

and Such other officers as may be determined by the President, from

appearing in such hearings conducted by Congress without first

securing the president‘s approval.

The department heads and the military officers who were invited by

the Senate committee then invoked EO 464 to except themselves.

Despite EO 464, the scheduled hearing proceeded with only 2

military personnel attending. For defying President Arroyo‘s order

barring military personnel from testifying before legislative inquiries

without her approval, Brig. Gen. Gudani and Col. Balutan were

relieved from their military posts and were made to face court martial

proceedings. EO 464‘s constitutionality was assailed for it is alleged

that it infringes on the rights and duties of Congress to conduct

investigation in aid of legislation and conduct oversight functions in

the implementation of laws.

ISSUE: Whether or not EO 464 is constitutional.

HELD: The SC ruled that EO 464 is constitutional in part. To

determine the validity of the provisions of EO 464, the SC sought to

distinguish Section 21 from Section 22 of Art 6 of the 1987

Constitution. The Congress‘ power of inquiry is expressly recognized

in Section 21 of Article VI of the Constitution. 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

10

as to be implied. In other words, the power of inquiry – with process

to enforce it – is an essential and appropriate auxiliary to the

legislative function. A legislative body cannot legislate wisely or

effectively in the absence of information respecting the conditions

which the legislation is intended to affect or change; and where the

legislative body does not itself possess the requisite information –

which is not infrequently true – recourse must be had to others who

do possess it.

Section 22 on the other hand provides for the Question Hour. The

Question Hour is closely related with the legislative power, and it is

precisely as a complement to or a supplement of the Legislative

Inquiry. The appearance of the members of Cabinet would be very,

very essential not only in the application of check and balance but

also, in effect, in aid of legislation. Section 22 refers only to Question

Hour, whereas, Section 21 would refer specifically to inquiries in aid

of legislation, under which anybody for that matter, may be

summoned and if he refuses, he can be held in contempt of the

House. 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. Ultimately, the power of Congress to compel the

appearance of executive officials under Section 21 and the lack of it

under Section 22 find their basis in the principle of separation of

powers.

While the executive branch is a co-equal branch of the legislature, it

cannot frustrate the power of Congress to legislate by refusing to

comply with its demands for information. When Congress exercises

its power of inquiry, the only way for department heads to exempt

themselves therefrom is by a valid claim of privilege. They are not

exempt by the mere fact that they are department heads. Only one

executive official may be exempted from this power — the President

on whom executive power is vested, hence, beyond the reach of

Congress except through the power of impeachment. It is based on

her being the highest official of the executive branch, and the due

respect accorded to a co-equal branch of government which is

sanctioned by a long-standing custom. The requirement then to

secure presidential consent under Section 1, limited as it is only to

appearances in the question hour, is valid on its face. For under

Section 22, Article VI of the Constitution, the appearance of

department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department

heads in inquiries in aid of legislation. Congress is not bound in such

instances to respect the refusal of the department head to appear in

such inquiry, unless a valid claim of privilege is subsequently made,

either by the President herself or by the Executive Secretary.

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.

In re: sabio

Republic of the Philippines

SUPREME COURT Manila

EN BANC

G.R. No. 174340 October 17, 2006

IN THE MATTER OF THE PETITION FOR ISSUANCE OF

WRIT OF HABEAS CORPUS OF CAMILO L. SABIO,

petitioner,

J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator,

vs.

HONORABLE SENATOR RICHARD GORDON, in his capacity

as Chairman, and the HONORABLE MEMBERS OF THE

COMMITTEE ON GOVERNMENT CORPORATIONS AND

PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC

SERVICES of the Senate, HONORABLE SENATOR JUAN

PONCE-ENRILE, in his official capacity as Member,

HONORABLE MANUEL VILLAR, Senate President, SENATE

SERGEANT-AT-ARMS, and the SENATE OF THE

PHILIPPINES, respondents.

G.R. No. 174318 October 17, 2006

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT

(PCGG) and CAMILO L. SABIO, Chairman, NARCISO S.

NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and

NICASIO A. CONTI, Commissioners, MANUEL ANDAL and

JULIO JALANDONI, PCGG nominees to Philcomsat Holdings

Corporation, petitioners,

vs.

RICHARD GORDON, in his capacity as Chairman, and

MEMBERS OF THE COMMITTEE ON GOVERNMENT

CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS

OF THE COMMITTEE ON PUBLIC SERVICES, SENATOR

JUAN PONCE-ENRILE, in his capacity as member of both said

Committees, MANUEL VILLAR, Senate President, THE

SENATE SERGEANT-AT-ARMS, and SENATE OF THE

PHILIPPINES, respondents.

G.R. No. 174177 October 17, 2006

PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G.

BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE,

DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA

KRISTINA ALOBBA, and JOHNNY TAN, petitioners,

11

vs.

SENATE COMMITTEE ON GOVERNMENT

CORPORATIONS and PUBLIC ENTERPRISES, its

MEMBERS and CHAIRMAN, the HONORABLE SENATOR

RICHARD GORDON and SENATE COMMITTEE ON

PUBLIC SERVICES, its Members and Chairman, the

HONORABLE SENATOR JOKER P. ARROYO, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

Two decades ago, on February 28, 1986, former President Corazon

C. Aquino installed her regime by issuing Executive Order (E.O.) No.

1,1 creating the Presidential Commission on Good Government

(PCGG). She entrusted upon this Commission the herculean task of

recovering the ill-gotten wealth accumulated by the deposed

President Ferdinand E. Marcos, his family, relatives, subordinates

and close associates.2 Section 4 (b) of E.O. No. 1 provides that: ―No

member or staff of the Commission shall be required to testify or

produce evidence in any judicial, legislative or administrative

proceeding concerning matters within its official cognizance.‖

Apparently, the purpose is to ensure PCGG‘s unhampered

performance of its task.3

Today, the constitutionality of Section 4(b) is being questioned on the

ground that it tramples upon the Senate‘s power to conduct legislative

inquiry under Article VI, Section 21 of the 1987 Constitution, which

reads:

The Senate or the House of Representatives or any of its respective

committees may conduct inquiries in aid of legislation in accordance

with its duly published rules of procedure. The rights of persons

appearing in or affected by such inquiries shall be respected.

The facts are undisputed.

On February 20, 2006, Senator Miriam Defensor Santiago introduced

Philippine Senate Resolution No. 455 (Senate Res. No.

455),4 ―directing an inquiry in aid of legislation on the anomalous

losses incurred by the Philippines Overseas Telecommunications

Corporation (POTC), Philippine Communications Satellite

Corporation (PHILCOMSAT), and PHILCOMSAT Holdings

Corporation (PHC) due to the alleged improprieties in their

operations by their respective Board of Directors.‖

The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and

entertainment expense of the PHC skyrocketed to P4.3 million, as

compared to the previous year‘s mere P106 thousand;

WHEREAS, some board members established wholly owned PHC

subsidiary called Telecommunications Center, Inc. (TCI), where PHC

funds are allegedly siphoned; in 18 months, over P73 million had

been allegedly advanced to TCI without any accountability report

given to PHC and PHILCOMSAT;

WHEREAS, the Philippine Star, in its 12 February 2002 issue

reported that the executive committee of Philcomsat has precipitately

released P265 million and granted P125 million loan to a relative of

an executive committee member; to date there have been no

payments given, subjecting the company to an estimated interest

income loss of P11.25 million in 2004;

WHEREAS, there is an urgent need to protect the interest of the

Republic of the Philippines in the PHC, PHILCOMSAT, and POTC

from any anomalous transaction, and to conserve or salvage any

remaining value of the government‘s equity position in these

corporations from any abuses of power done by their respective board

of directors;

WHEREFORE, be it resolved that the proper Senate Committee

shall conduct an inquiry in aid of legislation, on the anomalous

losses incurred by the Philippine Overseas Telecommunications

Corporation (POTC), Philippine Communications Satellite

Corporation (PHILCOMSAT), and Philcomsat Holdings

Corporations (PHC) due to the alleged improprieties in the

operations by their respective board of directors.

Adopted.

(Sgd) MIRIAM DEFENSOR SANTIAGO

On the same date, February 20, 2006, Senate Res. No. 455 was

submitted to the Senate and referred to the Committee on

Accountability of Public Officers and Investigations and Committee

on Public Services. However, on March 28, 2006, upon motion of

Senator Francis N. Pangilinan, it was transferred to the Committee on

Government Corporations and Public Enterprises.5

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority

of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of

the PCGG, one of the herein petitioners, inviting him to be one of the

resource persons in the public meeting jointly conducted by

the Committee on Government Corporations and Public Enterprises

and Committee on Public Services. The purpose of the public

meeting was to deliberate on Senate Res. No. 455.6

On May 9, 2006, Chairman Sabio declined the invitation because of

prior commitment.7 At the same time, he invoked Section 4(b) of

E.O. No. 1 earlier quoted.

On August 10, 2006, Senator Gordon issued a Subpoena Ad

Testificandum,8 approved by Senate President Manuel Villar,

requiring Chairman Sabio and PCGG Commissioners Ricardo

Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear

in the public hearing scheduled on August 23, 2006 and testify on

what they know relative to the matters specified in Senate Res. No.

455. Similar subpoenae were issued against the directors and officers

of Philcomsat Holdings Corporation, namely: Benito V. Araneta,

Philip J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L.

Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose,

Delfin P. Angcao, Alma Kristina Alloba and Johnny Tan.9

Again, Chairman Sabio refused to appear. In his letter to Senator

Gordon dated August 18, 2006, he reiterated his earlier position,

invoking Section 4(b) of E.O. No. 1. On the other hand, the directors

and officers of Philcomsat Holdings Corporation relied on the

position paper they previously filed, which raised issues on the

propriety of legislative inquiry.

12

Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the

authority of Senator Gordon, sent another notice10 to Chairman Sabio

requiring him to appear and testify on the same subject matter set on

September 6, 2006. The notice was issued ―under the same authority

of the Subpoena Ad Testificandum previously served upon (him) last

16 August 2006.‖

Once more, Chairman Sabio did not comply with the notice. He sent

a letter11 dated September 4, 2006 to Senator Gordon reiterating his

reason for declining to appear in the public hearing.

This prompted Senator Gordon to issue an Order dated September 7,

2006 requiring Chairman Sabio and Commissioners Abcede, Conti,

Javier and Nario to show cause why they should not be cited in

contempt of the Senate. On September 11, 2006, they submitted to

the Senate their Compliance and Explanation,12 which partly reads:

Doubtless, there are laudable intentions of the subject inquiry in

aid of legislation. But the rule of law requires that even the best

intentions must be carried out within the parameters of the

Constitution and the law. Verily, laudable purposes must be carried

out by legal methods. (Brillantes, Jr., et al. v. Commission on

Elections, En Banc [G.R. No. 163193, June 15, 2004])

On this score, Section 4(b) of E.O. No. 1 should not be ignored as it

explicitly provides:

No member or staff of the Commission shall be required to testify

or produce evidence in any judicial legislative or administrative

proceeding concerning matters within its official cognizance.

With all due respect, Section 4(b) of E.O. No. 1 constitutes a

limitation on the power of legislative inquiry, and a recognition by

the State of the need to provide protection to the PCGG in order to

ensure the unhampered performance of its duties under its charter.

E.O. No. 1 is a law, Section 4(b) of which had not been amended,

repealed or revised in any way.

To say the least, it would require both Houses of Congress and

Presidential fiat to amend or repeal the provision in controversy.

Until then, it stands to be respected as part of the legal system in this

jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88,

October 12, 1995: Obedience to the rule of law forms the bedrock of

our system of justice. If judges, under the guise of religious or

political beliefs were allowed to roam unrestricted beyond

boundaries within which they are required by law to exercise the

duties of their office, then law becomes meaningless. A government of

laws, not of men excludes the exercise of broad discretionary powers

by those acting under its authority. Under this system, judges are

guided by the Rule of Law, and ought to „protect and enforce it

without fear or favor,‟ 4 [Act of Athens (1955)] resist encroachments

by governments, political parties, or even the interference of their

own personal beliefs.)

x x x x x x

Relevantly, Chairman Sabio‘s letter to Sen. Gordon dated August 19,

2006 pointed out that the anomalous transactions referred to in the

P.S. Resolution No. 455 are subject of pending cases before the

regular courts, the Sandiganbayan and the Supreme Court (Pending

cases include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R.

No. 89102; b. Philippine Communications Satellite Corporation v.

Manuel Nieto, et al.; c. Philippine Communications Satellite

Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC,

Branch 61, Makati City; d. Philippine Communications Satellite

Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil

Case No. 04-1049) for which reason they may not be able to testify

thereon under the principle of sub judice. The laudable objectives of

the PCGG‘s functions, recognized in several cases decided by the

Supreme Court, of the PCGG will be put to naught if its recovery

efforts will be unduly impeded by a legislative investigation of cases

that are already pending before the Sandiganbayan and trial courts.

In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784

[1991]) the Honorable Supreme Court held:

―…[T]he issues sought to be investigated by the respondent

Committee is one over which jurisdiction had been acquired by the

Sandiganbayan. In short, the issue has been pre-empted by that court.

To allow the respondent Committee to conduct its own investigation

of an issue already before the Sandigabayan would not only pose the

possibility of conflicting judgments between a legislative committee

and a judicial tribunal, but if the Committee‘s judgment were to be

reached before that of the Sandiganbayan, the possibility of its

influence being made to bear on the ultimate judgment of the

Sandiganbayan can not be discounted.

x x x x x x

IT IS IN VIEW OF THE FOREGOING

CONSIDERATIONS that the Commission decided not to attend the

Senate inquiry to testify and produce evidence thereat.

Unconvinced with the above Compliance and Explanation,

the Committee on Government Corporations and Public

Enterprises and the Committee on Public Services issued an

Order13 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, Chairman Sabio filed with this Court a petition for habeas

corpus against the Senate Committee on Government Corporations

and Public Enterprises and Committee on Public Services, their

Chairmen, Senators Richard Gordon and Joker P. Arroyo and

Members. The case was docketed as G.R. No. 174340.

Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier,

and the PCGG‘s nominees to Philcomsat Holdings Corporation,

Manuel Andal and Julio Jalandoni, likewise filed a petition for

certiorari and prohibition against the same respondents, and also

against Senate President Manuel Villar, Senator Juan Ponce Enrile,

the Sergeant-at-Arms, and the entire Senate. The case was docketed

as G.R. No. 174318.

Meanwhile, Philcomsat Holdings Corporation and its officers and

directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V.

San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba

and Johnny Tan filed a petition for certiorari and prohibition against

the Senate Committees on Government Corporations and Public

13

Enterprises and Public Services, their Chairmen, Senators Gordon

and Arroyo, and Members. The case was docketed as G.R. No.

174177.

In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for

certiorari and prohibition) Chairman Sabio, Commissioners Abcede,

Conti, Nario, and Javier; and the PCGG‘s nominees Andal and

Jalandoni alleged: first, respondent Senate Committees disregarded

Section 4(b) of E.O. No. 1 without any justifiable reason; second, the

inquiries conducted by respondent Senate Committees are not in aid

of legislation; third, the inquiries were conducted in the absence of

duly published Senate Rules of Procedure Governing Inquiries in Aid

of Legislation; and fourth, respondent Senate Committees are not

vested with the power of contempt.

In G.R. No. 174177, petitioners Philcomsat Holdings Corporation

and its directors and officers alleged: first, respondent Senate

Committees have no jurisdiction over the subject matter stated in

Senate Res. No. 455;second, the same inquiry is not in accordance

with the Senate‘s Rules of Procedure Governing Inquiries in Aid of

Legislation; third, the subpoenae against the individual petitioners are

void for having been issued without authority; fourth, the conduct of

legislative inquiry pursuant to Senate Res. No. 455 constitutes undue

encroachment by respondents into justiciable controversies over

which several courts and tribunals have already acquired jurisdiction;

and fifth, the subpoenae violated petitioners‘ rights to privacy and

against self-incrimination.

In their Consolidated Comment, the above-named respondents

countered: first, the issues raised in the petitions involve political

questions over which this Court has no jurisdiction; second, Section

4(b) has been repealed by the Constitution; third, respondent Senate

Committees are vested with contempt power; fourth, Senate‘s Rules

of Procedure Governing Inquiries in Aid of Legislation have been

duly published; fifth, respondents have not violated any civil right of

the individual petitioners, such as their (a) right to privacy;

and (b) right against self-incrimination; and sixth, the inquiry does

not constitute undue encroachment into justiciable controversies.

During the oral arguments held on September 21, 2006, the parties

were directed to submit simultaneously their respective memoranda

within a non-extendible period of fifteen (15) days from date. In the

meantime, per agreement of the parties, petitioner Chairman Sabio

was allowed to go home. Thus, his petition for habeas corpus has

become moot. The parties also agreed that the service of the arrest

warrants issued against all petitioners and the proceedings before the

respondent Senate Committees are suspended during the pendency of

the instant cases.14

Crucial to the resolution of the present petitions is the fundamental

issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987

Constitution. On this lone issue hinges the merit of the contention of

Chairman Sabio and his Commissioners that their refusal to appear

before respondent Senate Committees is justified. With the resolution

of this issue, all the other issues raised by the parties have become

inconsequential.

Perched on one arm of the scale of justice is Article VI, Section 21 of

the 1987 Constitution granting respondent Senate Committees the

power of legislative inquiry. It reads:

The Senate or the House of Representatives or any of its

respective committees may conduct inquiries in aid of legislation

in accordance with its duly published rules of procedure. The

rights of persons appearing in or affected by such inquiries shall

be respected.

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting

such power of legislative inquiry by exempting all PCGG members

or staff from testifying in any judicial, legislative or administrative

proceeding, thus:

No member or staff of the Commission shall be required to testify

or produce evidence in any judicial, legislative or administrative

proceeding concerning matters within its official cognizance.

To determine whether there exists a clear and unequivocal

repugnancy between the two quoted provisions that warrants a

declaration that Section 4(b) has been repealed by the 1987

Constitution, a brief consideration of the Congress‘ power of inquiry

is imperative.

The Congress‘ power of inquiry has been recognized in foreign

jurisdictions long before it reached our shores through McGrain v.

Daugherty,15 cited in Arnault v. Nazareno.16 In those earlier days,

American courts considered the power of inquiry as inherent in the

power to legislate. The 1864 case of Briggs v. MacKellar17 explains

the breath and basis of the power, thus:

Where no constitutional limitation or restriction exists, it is

competent for either of the two bodies composing the legislature to

do, in their separate capacity, whatever may be essential to enable

them to legislate….It is well-established principle of this

parliamentary law, that either house may institute any

investigation having reference to its own organization, the conduct

or qualification of its members, its proceedings, rights, or privileges

or any matter affecting the public interest upon which it may be

important that it should have exact information, and in respect to

which it would be competent for it to legislate. The right to pass

laws, necessarily implies the right to obtain information upon any

matter which may become the subject of a law. It is essential to

the full and intelligent exercise of the legislative function….In

American legislatures the investigation of public matters before

committees, preliminary to legislation, or with the view of

advising the house appointing the committee is, as a

parliamentary usage, well established as it is in England, and the

right of either house to compel witnesses to appear and testify before

its committee, and to punish for disobedience has been frequently

enforced….The right of inquiry, I think, extends to other matters, in

respect to which it may be necessary, or may be deemed advisable to

apply for legislative aid.

Remarkably, in Arnault, this Court adhered to a similar theory. Citing

McGrain, it recognized that the power of inquiry is ―an essential and

appropriate auxiliary to the legislative function,‖ thus:

Although there is no provision in the ―Constitution expressly

investing either House of Congress with power to make

investigations and exact testimony to the end that it may exercise its

legislative functions advisedly and effectively, such power is so far

incidental to the legislative function as to be implied. In other

words, the power of inquiry – with process to enforce it – is an

essential and appropriate auxiliary to the legislative function. A

legislative body cannot legislate wisely or effectively in the

absence of information respecting the conditions which the

legislation is intended to affect or change; and where the

legislation body does not itself possess the requisite information –

14

which is not infrequently true – recourse must be had to others

who possess it.―

Dispelling any doubt as to the Philippine Congress‘ power of inquiry,

provisions on such power made their maiden appearance in Article

VIII, Section 12 of the 1973 Constitution.18 Then came the 1987

Constitution incorporating the present Article VI, Section 12. What

was therefore implicit under the 1935 Constitution, as influenced by

American jurisprudence, became explicit under the 1973 and 1987

Constitutions.19

Notably, the 1987 Constitution recognizes the power of investigation,

not just of Congress, but also of ―any of its committee.‖ This is

significant because it constitutes a direct conferral of investigatory

power upon the committees and it means that the mechanisms which

the Houses can take in order to effectively perform its investigative

function are also available to the committees.20

It can be said that the Congress‘ power of inquiry has gained more

solid existence and expansive construal. The Court‘s high regard to

such power is rendered more evident in Senate v. Ermita,21 where it

categorically ruled that “the power of inquiry is broad enough to

cover officials of the executive branch.” Verily, the Court

reinforced the doctrine in Arnault that “the operation of

government, being a legitimate subject for legislation, is a proper

subject for investigation” and that ―the power of inquiry is co-

extensive with the power to legislate.”

Considering these jurisprudential instructions, we find Section 4(b)

directly repugnant with Article VI, Section 21. Section 4(b) exempts

the PCGG members and staff from the Congress’ power of

inquiry. This cannot be countenanced. Nowhere in the Constitution

is any provision granting such exemption. The Congress‘ power of

inquiry, being broad, encompasses everything that concerns the

administration of existing laws as well as proposed or possibly

needed statutes.22 It even extends “to government agencies created

by Congress and officers whose positions are within the power of

Congress to regulate or even abolish.―23 PCGG belongs to this

class.

Certainly, a mere provision of law cannot pose a limitation to the

broad power of Congress, in the absence of any constitutional basis.

Furthermore, Section 4(b) is also inconsistent with Article XI,

Section 1 of the Constitution stating that: ―Public office is a public

trust. Public officers and employees must at all times be accountable

to the people, serve them with utmost responsibility, integrity, loyalty,

and efficiency, act with patriotism and justice, and lead modest

lives.‖

The provision presupposes that since an incumbent of a public office

is invested with certain powers and charged with certain duties

pertinent to sovereignty, the powers so delegated to the officer are

held in trust for the people and are to be exercised in behalf of the

government or of all citizens who may need the intervention of

the officers. Such trust extends to all matters within the range of

duties pertaining to the office. In other words, public officers are

but the servants of the people, and not their rulers.24

Section 4(b), being in the nature of an immunity, is inconsistent with

the principle of public accountability. It places the PCGG members

and staff beyond the reach of courts, Congress and other

administrative bodies. Instead of encouraging public accountability,

the same provision only institutionalizes irresponsibility and non-

accountability. In Presidential Commission on Good Government v.

Peña,25 Justice Florentino P. Feliciano characterized as ―obiter‖ the

portion of the majority opinion barring, on the basis of Sections 4(a)

and (b) of E.O. No. 1, a civil case for damages filed against the

PCGG and its Commissioners. He eloquently opined:

The above underscored portions are, it is respectfully submitted,

clearly obiter. It is important to make clear that the Court is not

here interpreting, much less upholding as valid and

constitutional, the literal terms of Section 4 (a), (b) of Executive

Order No.1. If Section 4 (a) were given its literal import as

immunizing the PCGG or any member thereof from civil liability

―for anything done or omitted in the discharge of the task

contemplated by this Order,‖ the constitutionality of Section 4 (a)

would, in my submission, be open to most serious doubt. For so

viewed, Section 4 (a) would institutionalize the irresponsibility and

non-accountability of members and staff of the PCGG, a notion that

is clearly repugnant to both the 1973 and 1987 Constitution and a

privileged status not claimed by any other official of the Republic

under the 1987 Constitution. 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. Sandiganbayan26 reiterates the same view. Indeed, Section

4(b) has been frowned upon by this Court even before the filing of

the present petitions.

Corollarily, Section 4(b) also runs counter to the following

constitutional provisions ensuring the people‘s access to information:

Article II, Section 28

Subject to reasonable conditions prescribed by law, the State adopts

and implements a policy of full public disclosure of all its

transactions involving public interest.

Article III, Section 7

The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents, and

papers pertaining to official acts, transactions, or decisions, as well as

to government research data used as basis for policy development,

shall be afforded the citizen, subject to such limitations as may be

provided by law.

These twin provisions of the Constitution seek to promote

transparency in policy-making and in the operations of the

government, as well as provide the people sufficient information to

enable them to exercise effectively their constitutional rights. Armed

with the right information, citizens can participate in public

discussions leading to the formulation of government policies and

their effective implementation. In Valmonte v. Belmonte, Jr.27 the

Court explained that an informed citizenry is essential to the

existence and proper functioning of any democracy, thus:

An essential element of these freedoms is to keep open a continuing

dialogue or process of communication between the government and

the people. It is in the interest of the State that the channels for free

15

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.

Consequently, the conduct of inquiries in aid of legislation is not only

intended to benefit Congress but also the citizenry. The people are

equally concerned with this proceeding and have the right to

participate therein in order to protect their interests. The extent of

their participation will largely depend on the information gathered

and made known to them. In other words, the right to information

really goes hand-in-hand with the constitutional policies of full public

disclosure and honesty in the public service. It is meant to enhance

the widening role of the citizenry in governmental decision-making

as well as in checking abuse in the government.28 The cases

of Tañada v. Tuvera29 and Legaspi v. Civil Service

Commission30 have recognized a citizen‘s interest and personality to

enforce a public duty and to bring an action to compel public officials

and employees to perform that duty.

Section 4(b) limits or obstructs the power of Congress to secure from

PCGG members and staff information and other data in aid of its

power to legislate. Again, this must not be countenanced. In Senate v.

Ermita,31 this Court stressed:

To the extent that investigations in aid of legislation are generally

conducted in public, however, any executive issuance tending to

unduly limit disclosures of information in such investigations

necessarily deprives the people of information which, being

presumed to be in aid of legislation, is presumed to be a matter of

public concern. The citizens are thereby denied access to

information which they can use in formulating their own opinions on

the matter before Congress – opinions which they can then

communicate to their representatives and other government officials

through the various legal means allowed by their freedom of

expression.

A statute may be declared unconstitutional because it is not within

the legislative power to enact; or it creates or establishes methods or

forms that infringe constitutional principles; or its purpose or effect

violates the Constitution or its basic principles.32 As shown in the

above discussion, Section 4(b) is inconsistent with Article VI,

Section 21 (Congress‘ power of inquiry), Article XI, Section

1 (principle of public accountability),Article II, Section 28 (policy of

full disclosure) and Article III, Section 7 (right to public

information).

Significantly, Article XVIII, Section 3 of the Constitution provides:

All existing laws, decrees, executive orders, proclamations, letters of

instructions, and other executive issuances not inconsistent with this

Constitution shall remain operative until amended, repealed, or

revoked.

The clear import of this provision is that all existing laws, executive

orders, proclamations, letters of instructions and other executive

issuances inconsistent or repugnant to the Constitution are repealed.

Jurisprudence is replete with decisions invalidating laws, decrees,

executive orders, proclamations, letters of instructions and other

executive issuances inconsistent with the Constitution. In Pelaez v.

Auditor General,33 the Court considered repealed Section 68 of the

Revised Administrative Code of 1917 authorizing the Executive to

change the seat of the government of any subdivision of local

governments, upon the approval of the 1935 Constitution. Section 68

was adjudged incompatible and inconsistent with the Constitutional

grant of limited executive supervision over local governments.

In Islamic Da‟wah Council of the Philippines, Inc., v. Office of the

Executive Secretary,34 the Court declared Executive Order No. 46,

entitled ―Authorizing the Office on Muslim Affairs to Undertake

Philippine Halal Certification,‖ void for encroaching on the religious

freedom of Muslims. In The Province of Batangas v. Romulo,35 the

Court declared some provisions of the General Appropriations Acts

of 1999, 2000 and 2001 unconstitutional for violating the

Constitutional precept on local autonomy. And in Ople v.

Torres,36 the Court likewise declared unconstitutional Administrative

Order No. 308, entitled ―Adoption of a National Computerized

Identification Reference System,‖ for being violative of the right to

privacy protected by the Constitution.

These Decisions, and many others, highlight that the Constitution is

the highest law of the land. It is ―the basic and paramount law to

which all other laws must conform and to which all persons,

including the highest officials of the land, must defer. No act shall

be valid, however noble its intentions, if it conflicts with the

Constitution.‖37 Consequently, this Court has no recourse but to

declare Section 4(b) of E.O. No. 1 repealed by the 1987

Constitution.

Significantly, during the oral arguments on September 21, 2006,

Chairman Sabio admitted that should this Court rule that Section 4(b)

is unconstitutional or that it does not apply to the Senate, he will

answer the questions of the Senators, thus:

CHIEF JUSTICE PANGANIBAN:

Okay. Now, if the Supreme Court rules that Sec. 4(b) is

unconstitutional or that it does not apply to the Senate, will you

answer the questions of the Senators?

CHAIRMAN SABIO:

Your Honor, my father was a judge, died being a judge. I was here in

the Supreme Court as Chief of Staff of Justice Feria. I would

definitely honor the Supreme Court and the rule of law.

CHIEF JUSTICE PANGANIBAN:

You will answer the questions of the Senators if we say that?

CHAIRMAN SABIO:

Yes, Your Honor. That is the law already as far as I am concerned.

With his admission, Chairman Sabio is not fully convinced that he

and his Commissioners are shielded from testifying before

respondent Senate Committees by Section 4(b) of E.O. No. 1. In

effect, his argument that the said provision exempts him and his co-

respondent Commissioners from testifying before respondent Senate

Committees concerning Senate Res. No. 455 utterly lacks merit.

Incidentally, an argument repeated by Chairman Sabio is that

respondent Senate Committees have no power to punish him and his

Commissioners for contempt of the Senate.

16

The argument is misleading.

Article VI, Section 21 provides:

The Senate or the House of Representatives or any of its

respective committees may conduct inquiries in aid of legislation

in accordance with its duly published rules of procedure. The

rights of persons appearing in or affected by such inquiries shall

be respected.

It must be stressed that the Order of Arrest for ―contempt of Senate

Committees and the Philippine Senate‖ was approved by Senate

President Villar and signed by fifteen (15) Senators. From this, it

can be concluded that the Order is under the authority, not only of the

respondent Senate Committees, but of the entire Senate.

At any rate, Article VI, Section 21 grants the power of inquiry not

only to the Senate and the House of Representatives, but also to any

of their respective committees. Clearly, there is a direct conferral

of power to the committees. Father Bernas, in his Commentary on

the 1987 Constitution, correctly pointed out its significance:

It should also be noted that the Constitution explicitly recognizes the

power of investigation not just of Congress but also of ―any of its

committees.‖ This is significant because it constitutes a direct

conferral of investigatory power upon the committees and it

means that the means which the Houses can take in order to

effectively perform its investigative function are also available to

the Committees.38

This is a reasonable conclusion. The conferral of the legislative

power of inquiry upon any committee of Congress must carry with it

all powers necessary and proper for its effective discharge.

Otherwise, Article VI, Section 21 will be meaningless. The

indispensability and usefulness of the power of contempt in a

legislative inquiry is underscored in a catena of cases, foreign and

local.

In the 1821 case of Anderson v. Dunn,39 the function of the Houses of

Congress with respect to the contempt power was likened to that of a

court, thus:

…But the court in its reasoning goes beyond this, and though the

grounds of the decision are not very clearly stated, we take them to

be: that there is in some cases a power in each House of Congress

to punish for contempt; that this power is analogous to that

exercised by courts of justice, and that it being the well

established doctrine that when it appears that a prisoner is held

under the order of a court of general jurisdiction for a contempt

of its authority, no other court will discharge the prisoner or

make further inquiry into the cause of his commitment. That this

is the general rule…as regards the relation of one court to another

must be conceded.

In McGrain,40 the U.S. Supreme Court held: “Experience has

shown that mere requests for such information are often

unavailing, and also that information which is volunteered is not

always accurate or complete; so some means of compulsion is

essential to obtain what is needed.‖ The Court, in Arnault v.

Nazareno,41 sustained the Congress‘ power of contempt on the basis

of this observation.

In Arnault v. Balagtas,42 the Court further explained that the

contempt power of Congress is founded upon reason and policy and

that the power of inquiry will not be complete if for every

contumacious act, Congress has to resort to judicial interference,

thus:

The principle that Congress or any of its bodies has the power to

punish recalcitrant witnesses is founded upon reason and policy. Said

power must be considered implied or incidental to the exercise of

legislative power. How could a legislative body obtain the

knowledge and information on which to base intended legislation

if it cannot require and compel the disclosure of such knowledge

and information if it is impotent to punish a defiance of its power

and authority? When the framers of the Constitution adopted the

principle of separation of powers, making each branch supreme

within the realm of its respective authority, it must have intended

each department’s authority to be full and complete,

independently of the other’s authority or power. And how could

the authority and power become complete if for every act of

refusal, every act of defiance, every act of contumacy against it,

the legislative body must resort to the judicial department for the

appropriate remedy, because it is impotent by itself to punish or

deal therewith, with the affronts committed against its authority

or dignity.43

In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang

Panlungsod of Dumaguete,44 the Court characterized contempt power

as a matter of self-preservation, thus:

The exercise by the legislature of the contempt power is a matter of

self-preservation as that branch of the government vested with the

legislative power, independently of the judicial branch, asserts its

authority and punishes contempts thereof. The contempt power of the

legislature is, therefore, sui generis x x x.

Meanwhile, with respect to G.R. No. 174177, the petition of

Philcomsat Holdings Corporation and its directors and officers, this

Court holds that the respondent Senate Committees‘ inquiry does not

violate their right to privacy and right against self-incrimination.

One important limitation on the Congress‘ power of inquiry is that

―the rights of persons appearing in or affected by such inquiries

shall be respected.‖ This is just another way of saying that the power

of inquiry must be ―subject to the limitations placed by the

Constitution on government action.‖ As held in Barenblatt v. United

States,45 ―the Congress, in common with all the other branches of

the Government, must exercise its powers subject to the

limitations placed by the Constitution on governmental action,

more particularly in the context of this case, the relevant

limitations of the Bill of Rights.‖

First is the right to privacy.

Zones of privacy are recognized and protected in our laws.46 Within

these zones, any form of intrusion is impermissible unless excused by

law and in accordance with customary legal process. The meticulous

regard we accord to these zones arises not only from our conviction

that the right to privacy is a ―constitutional right‖ and ―the right most

valued by civilized men,‖47 but also from our adherence to the

Universal Declaration of Human Rights which mandates that, ―no

one shall be subjected to arbitrary interference with his privacy‖ and

―everyone has the right to the protection of the law against such

interference or attacks.‖48

17

Our Bill of Rights, enshrined in Article III of the Constitution,

provides at least two guarantees that explicitly create zones of

privacy. It highlights a person‘s ―right to be let alone‖ or the ―right to

determine what, how much, to whom and when information about

himself shall be disclosed.‖49 Section 2 guarantees ―the right of the

people to be secure in their persons, houses, papers and effects

against unreasonable searches and seizures of whatever nature

and for any purpose.‖ Section 3 renders inviolable the ―privacy of

communication and correspondence‖ and further cautions that

―any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any proceeding.‖

In evaluating a claim for violation of the right to privacy, a court

must determine whether a person has exhibited a reasonable

expectation of privacy and, if so, whether that expectation has been

violated by unreasonable government intrusion.50 Applying this

determination to these cases, the important inquiries are: first, did the

directors and officers of Philcomsat Holdings Corporation exhibit a

reasonable expectation of privacy?; and second, did the government

violate such expectation?

The answers are in the negative. Petitioners were invited in the

Senate‘s public hearing to deliberate on Senate Res. No. 455,

particularly ―on the anomalous losses incurred by the Philippine

Overseas Telecommunications Corporation (POTC), Philippine

Communications Satellite Corporation (PHILCOMSAT), and

Philcomsat Holdings Corporations (PHC) due to the alleged

improprieties in the operations by their respective board of

directors.‖ Obviously, the inquiry focus on petitioners‘ acts

committed in the discharge of their duties as officers and directors of

the said corporations, particularly Philcomsat Holdings

Corporation. Consequently, they have no reasonable expectation

of privacy over matters involving their offices in a corporation

where the government has interest. Certainly, such matters are of

public concern and over which the people have the right to

information.

This goes to show that the right to privacy is not absolute where there

is an overriding compelling state interest. In Morfe v. Mutuc,51 the

Court, in line with Whalen v. Roe,52 employed the rational basis

relationship test when it held that there was no infringement of the

individual‘s right to privacy as the requirement to disclosure

information is for a valid purpose, i.e., to curtail and minimize the

opportunities for official corruption, maintain a standard of honesty

in public service, and promote morality in public

administration.53 In Valmonte v. Belmonte,54 the Court remarked that

as public figures, the Members of the former Batasang Pambansa

enjoy a more limited right to privacy as compared to ordinary

individuals, and their actions are subject to closer scrutiny. Taking

this into consideration, the Court ruled that the right of the people to

access information on matters of public concern prevails over the

right to privacy of financial transactions.

Under the present circumstances, the alleged anomalies in the

PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and

the conspiratorial participation of the PCGG and its officials

are compelling reasons for the Senate to exact vital information from

the directors and officers of Philcomsat Holdings Corporations, as

well as from Chairman Sabio and his Commissioners to aid it in

crafting the necessary legislation to prevent corruption and formulate

remedial measures and policy determination regarding PCGG‘s

efficacy. There being no reasonable expectation of privacy on the

part of those directors and officers over the subject covered by Senate

Res. No. 455, it follows that their right to privacy has not been

violated by respondent Senate Committees.

Anent the right against self-incrimination, it must be emphasized that

this right maybe invoked by the said directors and officers of

Philcomsat Holdings Corporation only when the incriminating

question is being asked, since they have no way of knowing in

advance the nature or effect of the questions to be asked of

them.‖55 That this right may possibly be violated or abused is no

ground for denying respondent Senate Committees their power of

inquiry. The consolation is that when this power is abused, such issue

may be presented before the courts. At this juncture, what is

important is that respondent Senate Committees have

sufficient Rules to guide them when the right against self-

incrimination is invoked. Sec. 19 reads:

Sec. 19. Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a

question tends to elicit an answer that will incriminate him is

propounded to him. However, he may offer to answer any question in

an executive session.

No person can refuse to testify or be placed under oath or affirmation

or answer questions before an incriminatory question is asked. His

invocation of such right does not by itself excuse him from his duty

to give testimony.

In such a case, the Committee, by a majority vote of the members

present there being a quorum, shall determine whether the right has

been properly invoked. If the Committee decides otherwise, it shall

resume its investigation and the question or questions previously

refused to be answered shall be repeated to the witness. If the latter

continues to refuse to answer the question, the Committee may

punish him for contempt for contumacious conduct.

The same directors and officers contend that the Senate is barred

from inquiring into the same issues being litigated before the Court of

Appeals and the Sandiganbayan. Suffice it to state that the Senate

Rules of Procedure Governing Inquiries in Aid of Legislation provide

that the filing or pendency of any prosecution of criminal or

administrative action should not stop or abate any inquiry to carry out

a legislative purpose.

Let it be stressed at this point that so long as the constitutional rights

of witnesses, like Chairman Sabio and his Commissioners, will be

respected by respondent Senate Committees, it their duty to cooperate

with them in their efforts to obtain the facts needed for intelligent

legislative action. The unremitting obligation of every citizen is to

respond to subpoenae, to respect the dignity of the Congress and its

Committees, and to testify fully with respect to matters within the

realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo

Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and

Manuel Andal and Julio Jalandoni, PCGG‘s nominees to Philcomsat

Holdings Corporation, as well as its directors and officers, must

comply with the Subpoenae Ad Testificandum issued by respondent

Senate Committees directing them to appear and testify in public

hearings relative to Senate Resolution No. 455.

WHEREFORE, the petition in G.R. No. 174340 for habeas

corpus is DISMISSED, for being moot. The petitions in G.R Nos.

174318 and 174177 are likewise DISMISSED.

18

Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987

Constitution. Respondent Senate Committees‘ power of inquiry

relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo

L. Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio

Conti and Tereso Javier; and Manuel Andal and Julio Jalandoni,

PCGG‘s nominees to Philcomsat Holdings Corporation, as well as its

directors and officers, petitioners in G.R. No. 174177, are ordered to

comply with the Subpoenae Ad Testificandum issued by respondent

Senate Committees directing them to appear and testify in public

hearings relative to Senate Resolution No. 455.

SO ORDERED.

In re: sabio digest

04 SCRA 704 – Political Law – Inquiry in aid of legislation – public

officers

On February 20, 2006, Senator Miriam Defensor-Santiago introduced

Senate Res. No. 455 ―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.‖ Pursuant to this, on May 8, 2006, Senator Richard

Gordon, wrote Chairman Camilo Sabio of the PCGG 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. Chairman Sabio

declined the invitation because of prior commitment. At the same

time, he invoked Section 4(b) of E.O. No. 1 ―No member or staff of

the Commission shall be required to testify or produce evidence in

any judicial, legislative or administrative proceeding concerning

matters within its official cognizance.‖ Apparently, the purpose is to

ensure PCGG‘s unhampered performance of its task. Gordon‘s

Subpoenae Ad Testificandum was repeatedly ignored by Sabio hence

he threatened Sabio to be cited with contempt.

ISSUE: Whether or not Section 4 of EO No. 1 is constitutional.

HELD: No. 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, 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‖. 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.

Brillantes v. comelec

[G.R. No. 163193. June 15, 2004]

SIXTO S. BRILLANTES, JR. petitioner, vs. JOSE CONCEPCION,

JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z.

GALVEZ, TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN,

NORBERTO M. GONZALES, HONESTO M. ISLETA, AND JOSE

A. BERNAS, petitioners-in-intervention, vs.

COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before us is the petition for certiorari and prohibition under Rule 65

of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter

and taxpayer, seeking to nullify, for having been issued with grave

abuse of discretion amounting to lack or excess of jurisdiction,

Resolution No. 6712 dated April 28, 2004 approved by the

Commission on Elections (COMELEC) En Banc captioned

GENERAL INSTRUCTIONS FOR THE ELECTRONIC

TRANSMISSION AND CONSOLIDATION OF ADVANCED

RESULTS IN THE MAY 10, 2004 ELECTIONS.1[1] The

petitioner, likewise, prays for the issuance of a temporary restraining

order and, after due proceedings, a writ of prohibition to permanently

enjoin the respondent COMELEC from enforcing and implementing

the questioned resolution.

After due deliberation, the Court resolved to require the respondent to

comment on the petition and to require the parties to observe the

status quo prevailing before the issuance by the COMELEC of the

assailed resolution. The parties were heard on oral arguments on

May 8, 2004. The respondent COMELEC was allowed during the

hearing to make a presentation of the Electronic Transmission,

Consolidation and Dissemination (PHASE III) program of the

COMELEC, through Mr. Renato V. Lim of the Philippine Multi-

Media System, Inc. (PMSI).

The Court, thereafter, resolved to maintain the status quo order issued

on May 6, 2004 and expanded it to cover any and all other issuances

related to the implementation of the so-called election quick count

project. In compliance with the resolution of the Court, the

respondent, the petitioner and the petitioners-in-intervention

submitted the documents required of them.

The Antecedents

On December 22, 1997, Congress enacted Republic Act No.

84362[2] authorizing the COMELEC to use an automated election

system (AES) for the process of voting, counting of votes and

canvassing/consolidating the results of the national and local

elections. It also mandated the COMELEC to acquire automated

counting machines (ACMs), computer equipment, devices and

materials; and to adopt new electoral forms and printing materials.

The COMELEC initially intended to implement the automation

during the May 11, 1998 presidential elections, particularly in the

Autonomous Region in Muslim Mindanao (ARMM). The failure of

the machines to read correctly some automated ballots, however,

deferred its implementation.3[3]

In the May 2001 elections, the counting and canvassing of votes for

both national and local positions were also done manually, as no

19

additional ACMs had been acquired for that electoral exercise

because of time constraints.

On October 29, 2002, the COMELEC adopted, in its Resolution No.

02-0170, a modernization program for the 2004 elections consisting

of three (3) phases, to wit:

(1) PHASE I – Computerized system of registration and voters

validation or the so-called ―biometrics‖ system of registration;

(2) PHASE II – Computerized voting and counting of votes;

and

(3) PHASE III – Electronic transmission of results.

It resolved to conduct biddings for the three phases.

On January 24, 2003, President Gloria Macapagal-Arroyo issued

Executive Order No. 172,4[4] which allocated the sum of

P2,500,000,000 to exclusively fund the AES in time for the May 10,

2004 elections.

On January 28, 2003, the COMELEC issued an Invitation to Bid5[5]

for the procurement of supplies, equipment, materials and services

needed for the complete implementation of all three phases of the

AES with an approved budget of P2,500,000,000.

On February 10, 2003, upon the request of the COMELEC, President

Gloria Macapagal-Arroyo issued Executive Order No. 175,6[6]

authorizing the release of a supplemental P500 million budget for the

AES project of the COMELEC. The said issuance, likewise,

instructed the Department of Budget and Management (DBM) to

ensure that the aforementioned additional amount be used exclusively

for the AES prescribed under Rep. Act No. 8436, particularly ―the

process of voting, counting of votes and canvassing/consolidation of

results of the national and local elections.‖7[7]

On April 15, 2003, the COMELEC promulgated Resolution No. 6074

awarding the contract for Phase II of the AES to Mega Pacific

Consortium and correspondingly entered into a contract with the

latter to implement the project. On the same day, the COMELEC

entered into a separate contract with Philippine Multi-Media System,

Inc. (PMSI) denominated ―ELECTRONIC TRANSMISSION,

CONSOLIDATION & DISSEMINATION OF ELECTION

RESULTS PROJECT CONTRACT.8[8] The contract, by its very

terms, pertains to Phase III of the respondent COMELEC‘s AES

modernization program. It was predicated on a previous bid award of

the contract, for the lease of 1,900 units of satellite-based Very Small

Aperture Terminals (VSAT) each unit consisting of an indoor and

outdoor equipment, to PMSI for possessing the legal, financial and

technical expertise necessary to meet the project‘s objectives. The

COMELEC bound and obliged itself to pay PMSI the sum of

P298,375,808.90 as rentals for the leased equipment and for its

services.

In the meantime, the Information Technology Foundation of the

Philippines (ITFP), filed a petition for certiorari and prohibition in

this Court for the nullification of Resolution No. 6074 approving the

contract for Phase II of AES to Mega Pacific Consortium, entitled

and docketed as Information Technology Foundation of the

Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the

case was pending in this Court, the COMELEC paid the contract fee

to the PMSI in trenches.

On January 13, 2004, this Court promulgated its Decision nullifying

COMELEC Resolution No. 6074 awarding the contract for Phase II

of the AES to Mega Pacific Consortium. Also voided was the

subsequent contract entered into by the respondent COMELEC with

Mega Pacific Consortium for the purchase of computerized

voting/counting machines for the purpose of implementing the

second phase of the modernization program. Phase II of the AES

was, therefore, scrapped based on the said Decision of the Court and

the COMELEC had to maintain the old manual voting and counting

system for the May 10, 2004 elections.

On the other hand, the validation scheme under Phase I of the AES

apparently encountered problems in its implementation, as evinced

by the COMELEC‘s pronouncements prior to the elections that it was

reverting to the old listing of voters. Despite the scrapping of Phase

II of the AES, the COMELEC nevertheless ventured to implement

Phase III of the AES through an electronic transmission of advanced

―unofficial‖ results of the 2004 elections for national, provincial and

municipal positions, also dubbed as an ―unofficial quick count.‖

Senate President Franklin Drilon had misgivings and

misapprehensions about the constitutionality of the proposed

electronic transmission of results for the positions of President and

Vice-President, and apprised COMELEC Chairman Benjamin Abalos

of his position during their meeting on January 28, 2004. He also

wrote Chairman Abalos on February 2, 2004. The letter reads:

Dear Chairman Abalos,

This is to confirm my opinion which I relayed to you during our

meeting on January 28th that the Commission on Elections cannot and

should not conduct a ―quick count‖ on the results of the elections for

the positions of President and Vice-President.

Under Section 4 of Article VII of the Constitution, it is the Congress

that has the sole and exclusive authority to canvass the votes for

President and Vice-President. Thus, any quick count to be conducted

by the Commission on said positions would in effect constitute a

canvass of the votes of the President and Vice-President, which not

only would be pre-emptive of the authority of the Congress, but also

would be lacking of any Constitutional authority. You conceded the

validity of the position we have taken on this point.

In view of the foregoing, we asked the COMELEC during that

meeting to reconsider its plan to include the votes for President and

Vice-President in the ―quick count‖, to which you graciously

consented. Thank you very much.9[9]

20

The COMELEC approved a Resolution on February 10, 2004

referring the letter of the Senate President to the members of the

COMELEC and its Law Department for study and recommendation.

Aside from the concerns of the Senate President, the COMELEC had

to contend with the primal problem of sourcing the money for the

implementation of the project since the money allocated by the Office

of the President for the AES had already been spent for the

acquisition of the equipment. All these developments

notwithstanding, and despite the explicit specification in the project

contract for Phase III that the same was functionally intended to be an

interface of Phases I and II of the AES modernization program, the

COMELEC was determined to carry out Phase III of the AES. On

April 6, 2004, the COMELEC, in coordination with the project

contractor PMSI, conducted a field test of the electronic transmission

of election results.

On April 27, 2004, the COMELEC met en banc to update itself on

and resolve whether to proceed with its implementation of Phase III

of the AES.10[10] During the said meeting, COMELEC

Commissioner Florentino Tuason, Jr. requested his fellow

Commissioners that ―whatever is said here should be confined within

the four walls of this room and the minutes so that walang

masyadong problema.11[11] Commissioner Tuason, Jr. stated that he

had no objection as to the Phase III of the modernization project

itself, but had concerns about the budget. He opined that other funds

of the COMELEC may not be proper for realignment.

Commissioners Resurreccion Z. Borra and Virgilio Garcillano also

expressed their concerns on the budget for the project. Commissioner

Manuel Barcelona, Jr. shared the sentiments of Commissioners

Garcillano and Tuason, Jr. regarding personnel and budgetary

problems. Commissioner Sadain then manifested that the

consideration for the contract for Phase III had already been almost

fully paid even before the Court‘s nullification of the contract for

Phase II of the AES, but he was open to the possibility of the

realignment of funds of the COMELEC for the funding of the project.

He added that if the implementation of Phase III would not be

allowed to continue just because Phase II was nullified, then it would

be P300,000,000 down the drain, in addition to the already allocated

disbursement on Phase II of the AES.12[12] Other concerns of the

Commissioners were on the legality of the project considering the

scrapping of Phase II of the AES, as well as the operational

constraints related to its implementation.

Despite the dire and serious reservations of most of its members, the

COMELEC, the next day, April 28, 2004, barely two weeks before

the national and local elections, approved the assailed resolution

declaring that it ―adopts the policy that the precinct election results of

each city and municipality shall be immediately transmitted

electronically in advance to the COMELEC, Manila.‖13[13] For the

purpose, respondent COMELEC established a National

Consolidation Center (NCC), Electronic Transmission Centers

(ETCs) for every city and municipality, and a special ETC at the

COMELEC, Manila, for the Overseas Absentee Voting.14[14]

Briefly, the procedure for this electronic transmission of precinct

results is outlined as follows:

I. The NCC shall receive and consolidate all precinct results

based on the data transmitted to it by each ETC;15[15]

II. Each city and municipality shall have an ETC ―where votes

obtained by each candidate for all positions shall be encoded, and

shall consequently be transmitted electronically to the NCC, through

Very Small Aperture Terminal (VSAT) facilities.‖16[16] For this

purpose, personal computers shall be allocated for all cities and

municipalities at the rate of one set for every one hundred seventy-

five (175) precincts;17[17]

III. A Department of Education (DepEd) Supervisor shall be

designated in the area who will be assigned in each polling center for

the purpose of gathering from all Board of Election Inspectors (BEI)

therein the envelopes containing the Copy 3 of the Election Returns

(ER) for national positions and Copy 2 of the ER for local positions,

both intended for the COMELEC, which shall be used as basis for the

encoding and transmission of advanced precinct results.18[18]

The assailed resolution further provides that written notices of the

date, time and place of the electronic transmission of advanced

precinct results shall be given not later than May 5, 2004 to

candidates running for local positions, and not later than May 7, 2004

to candidates running for national positions, as well as to political

parties fielding candidates, and parties, organizations/coalitions

participating under the party-list system.19[19]

In relation to this, Section 13 of the assailed resolution provides that

the encoding proceedings were ministerial and the tabulations were

―advanced unofficial results.‖ The entirety of Section 13, reads:

Sec. 13. Right to observe the ETC proceedings. – Every registered

political party or coalition of parties, accredited political party,

sectoral party/organization or coalition thereof under the party-list,

through its representative, and every candidate for national positions

has the right to observe/witness the encoding and electronic

transmission of the ERs within the authorized perimeter.

Provided, That candidates for the sangguniang panlalawigan,

sangguniang panglungsod or sangguniang bayan belonging to the

same slate or ticket shall collectively be entitled to only one common

observer at the ETC.

The citizens‘ arm of the Commission, and civic, religious,

professional, business, service, youth and other similar organizations

collectively, with prior authority of the Commission, shall each be

21

entitled to one (1) observer. Such fact shall be recorded in the

Minutes.

The observer shall have the right to observe, take note of and make

observations on the proceedings of the team. Observations shall be in

writing and, when submitted, shall be attached to the Minutes.

The encoding proceedings being ministerial in nature, and the

tabulations being advanced unofficial results, no objections or

protests shall be allowed or entertained by the ETC.

In keeping with the ―unofficial‖ character of the electronically

transmitted precinct results, the assailed resolution expressly provides

that ―no print-outs shall be released at the ETC and at the

NCC.‖20[20] Instead, consolidated and per-precinct results shall be

made available via the Internet, text messaging, and electronic

billboards in designated locations. Interested parties may print the

result published in the COMELEC web site.21[21]

When apprised of the said resolution, the National Citizens

Movement for Free Elections (NAMFREL), and the heads of the

major political parties, namely, Senator Edgardo J. Angara of the

Laban ng Demokratikong Pilipino (LDP) and Chairman of the

Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive

Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko,

Frisco San Juan of the Nationalist People‘s Coalition (NPC), Gen.

Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin

Drilon of the Liberal Party, and Speaker Jose de Venecia of the

Lakas-Christian Muslim Democrats (CMD) and Norberto M.

Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote

the COMELEC, on May 3, 2004 detailing their concerns about the

assailed resolution:

This refers to COMELEC Resolution 6712 promulgated on 28 April

2004.

NAMFREL and political parties have the following concerns about

Resolution 6712 which arose during consultation over the past

week[:]

a) The Resolution disregards RA 8173, 8436, and 7166 which

authorize only the citizen‘s arm to use an election return for an

unofficial count; other unofficial counts may not be based on an

election return; Indeed, it may be fairly inferred from the law that

except for the copy of the citizen‘s arm, election returns may only be

used for canvassing or for receiving dispute resolutions.

b) The Commission‘s copy, the second or third copy of the election

return, as the case may be, has always been intended to be an

archived copy and its integrity preserved until required by the

Commission to resolve election disputes. Only the Board of Election

Inspectors is authorized to have been in contact with the return before

the Commission unseals it.

c) The instruction contained in Resolution 6712, to break the seal of

the envelope containing copies Nos. 2 and 3 will introduce a break in

the chain of custody prior to its opening by the Commission on

Election[s]. In the process of prematurely breaking the seal of the

Board of Election Inspectors, the integrity of the Commission‘s copy

is breached, thereby rendering it void of any probative value.

To us, it does appear that the use of election returns as prescribed in

Resolution 6712 departs from the letters and spirit of the law, as well

as previous practice. More importantly, questions of legalities aside,

the conduct of an advanced count by the COMELEC may affect the

credibility of the elections because it will differ from the results

obtained from canvassing. Needless to say, it does not help either

that Resolution 6712 was promulgated only recently, and

perceivably, on the eve of the elections.

In view of the foregoing, we respectfully request the Commission to

reconsider Resolution 6712 which authorizes the use of election

returns for the consolidation of the election results for the May 10,

2004 elections.22[22]

The Present Petition

On May 4, 2004, the petition at bar was filed in this Court.

Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime

Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M.

Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court

their Motion to Admit Attached Petition-in-Intervention. In their

petition-in-intervention, movants-petitioners urge the Court to declare

as null and void the assailed resolution and permanently enjoin the

respondent COMELEC from implementing the same. The Court

granted the motion of the petitioners-in-intervention and admitted

their petition.

In assailing the validity of the questioned resolution, the petitioner

avers in his petition that there is no provision under Rep. Act No.

8436 which authorizes the COMELEC to engage in the

biometrics/computerized system of validation of voters (Phase I) and

a system of electronic transmission of election results (Phase III).

Even assuming for the nonce that all the three (3) phases are duly

authorized, they must complement each other as they are not distinct

and separate programs but mere stages of one whole scheme.

Consequently, considering the failed implementation of Phases I and

II, there is no basis at all for the respondent COMELEC to still push

through and pursue with Phase III. The petitioner essentially posits

that the counting and consolidation of votes contemplated under

Section 6 of Rep. Act No. 8436 refers to the official COMELEC

count under the fully automated system and not any kind of

―unofficial‖ count via electronic transmission of advanced results as

now provided under the assailed resolution.

The petitioners-in-intervention point to several constitutional

infractions occasioned by the assailed resolution. They advance the

view that the assailed resolution effectively preempts the sole and

exclusive authority of Congress under Article VII, Section 4 of the

Constitution to canvass the votes for President and Vice-President.

Further, as there has been no appropriation by Congress for the

respondent COMELEC to conduct an ―unofficial‖ electronic

transmission of results of the May 10, 2004 elections, any

expenditure for the said purpose contravenes Article VI, Section 29

(par. 1) of the Constitution.

22

On statutory grounds, the petitioner and petitioners-in-intervention

contend that the assailed resolution encroaches upon the authority of

NAMFREL, as the citizens‘ accredited arm, to conduct the

―unofficial‖ quick count as provided under pertinent election laws. It

is, likewise, impugned for violating Section 52(i) of the Omnibus

Election Code, relating to the requirement of notice to the political

parties and candidates of the adoption of technological and electronic

devices during the elections.

For its part, the COMELEC preliminarily assails the jurisdiction of

this Court to pass upon the assailed resolution‘s validity claiming that

it was promulgated in the exercise of the respondent COMELEC‘s

executive or administrative power. It asserts that the present

controversy involves a ―political question;‖ hence, beyond the ambit

of judicial review. It, likewise, impugns the standing of the petitioner

to file the present petition, as he has not alleged any injury which he

would or may suffer as a result of the implementation of the assailed

resolution.

On the merits, the respondent COMELEC denies that the assailed

resolution was promulgated pursuant to Rep. Act No. 8436, and that

it is the implementation of Phase III of its modernization program.

Rather, as its bases, the respondent COMELEC invokes the general

grant to it of the power to enforce and administer all laws relative to

the conduct of elections and to promulgate rules and regulations to

ensure free, orderly and honest elections by the Constitution, the

Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The

COMELEC avers that granting arguendo that the assailed resolution

is related to or connected with Phase III of the modernization

program, no specific law is violated by its implementation. It posits

that Phases I, II and III are mutually exclusive schemes such that,

even if the first two phases have been scrapped, the latter phase may

still proceed independently of and separately from the others. It

further argues that there is statutory basis for it to conduct an

―unofficial‖ quick count. Among others, it invokes the general grant

to it of the power ―to ensure free, orderly, honest, peaceful and

credible elections.‖ Finally, it claims that it had complied with

Section 52(i) of the Omnibus Election Code, as the political parties

and all the candidates of the 2004 elections were sufficiently notified

of the electronic transmission of advanced election results.

The COMELEC trivializes as ―purely speculative‖ these

constitutional concerns raised by the petitioners-in-intervention and

the Senate President. It maintains that what is contemplated in the

assailed resolution is not a canvass of the votes but merely

consolidation and transmittal thereof. As such, it cannot be made the

basis for the proclamation of any winning candidate. Emphasizing

that the project is ―unofficial‖ in nature, the COMELEC opines that it

cannot, therefore, be considered as preempting or usurping the

exclusive power of Congress to canvass the votes for President and

Vice-President.

The Issues

At the said hearing on May 8, 2004, the Court set forth the issues for

resolution as follows:

1. Whether the petitioner and the petitioners-

intervenors have standing to sue;

2. Assuming that they have standing, whether the

issues they raise are political in nature over which

the Court has no jurisdiction;

3. Assuming the issues are not political, whether

Resolution No. 6712 is void:

(a) for preempting the sole and exclusive

authority of Congress under Art. VII,

Sec. 4 of the 1987 Constitution to

canvass the votes for the election of

President and Vice-President;

(b) for violating Art. VI, Sec. 29 (par. 1) of

the 1987 Constitution that ―no money

shall be paid out of the treasury except

in pursuance of an appropriation made

by law;‖

(c) for disregarding Rep. Acts Nos. 8173,

8436 and 7166 which authorize only

the citizens‘ arm to use an election

return for an ―unofficial‖ count;

(d) for violation of Sec. 52(i) of the

Omnibus Election Code, requiring not

less than thirty (30) days notice of the

use of new technological and electronic

devices; and,

(e) for lack of constitutional or statutory basis; and,

4. Whether the implementation of Resolution No.

6712 would cause trending, confusion and chaos.

The Ruling of the Court

The issues, as earlier defined, shall now be resolved in seriatim:

The Petitioners And Petitioners-In-

Intervention Possess The Locus

Standi To Maintain The Present

Action

The gist of the question of standing is whether a party has "alleged

such a personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination of difficult

constitutional questions.23[23] Since the implementation of the

assailed resolution obviously involves the expenditure of funds, the

petitioner and the petitioners-in-intervention, as taxpayers, possess

the requisite standing to question its validity as they have sufficient

interest in preventing the illegal expenditure of money raised by

taxation.24[24] In essence, taxpayers are allowed to sue where there

is a claim of illegal disbursement of public funds, or that public

money is being deflected to any improper purpose, or where the

23

petitioners seek to restrain the respondent from wasting public funds

through the enforcement of an invalid or unconstitutional law.25[25]

Most of the petitioners-in-intervention are also representatives of

major political parties that have participated in the May 10, 2004

elections. On the other hand, petitioners-in-intervention Concepcion

and Bernas represent the National Citizens Movement for Free

Elections (NAMFREL), which is the citizens‘ arm authorized to

conduct an ―unofficial‖ quick count during the said elections. They

have sufficient, direct and personal interest in the manner by which

the respondent COMELEC would conduct the elections, including

the counting and canvassing of the votes cast therein.

Moreover, the petitioners-in-intervention Drilon and De Venecia are,

respectively, President of the Senate and Speaker of the House of

Representatives, the heads of Congress which is exclusively

authorized by the Constitution to canvass the votes for President and

Vice-President. They have the requisite standing to prevent the

usurpation of the constitutional prerogative of Congress.

The Issue Raised By The

Petition Is Justiciable

Article VIII, Section 1 of the 1987 Constitution expands the concept

of judicial review by providing that:

SEC. 1. The judicial power shall be vested in one Supreme Court and

in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable

and enforceable, and to determine whether or not there has been

grave abuse of discretion amounting to lack or excess of jurisdiction

on the part of any branch or instrumentality of the Government.

The Court does not agree with the posture of the respondent

COMELEC that the issue involved in the present petition is a

political question beyond the jurisdiction of this Court to review. As

the leading case of Tañada vs. Cuenco26[26] put it, political

questions are concerned with ―issues dependent upon the wisdom, not

legality of a particular measure.‖

The issue raised in the present petition does not merely concern the

wisdom of the assailed resolution but focuses on its alleged disregard

for applicable statutory and constitutional provisions. In other words,

that the petitioner and the petitioners-in-intervention are questioning

the legality of the respondent COMELEC‘s administrative issuance

will not preclude this Court from exercising its power of judicial

review to determine whether or not there was grave abuse of

discretion amounting to lack or excess of jurisdiction on the part of

the respondent COMELEC in issuing Resolution No. 6712. Indeed,

administrative issuances must not override, supplant or modify the

law, but must remain consistent with the law they intend to carry

out.27[27] When the grant of power is qualified, conditional or

subject to limitations, the issue of whether the prescribed

qualifications or conditions have been met or the limitations

respected, is justiciable – the problem being one of legality or

validity, not its wisdom.28[28] In the present petition, the Court must

pass upon the petitioner‘s contention that Resolution No. 6712 does

not have adequate statutory or constitutional basis.

Although not raised during the oral arguments, another procedural

issue that has to be addressed is whether the substantive issues had

been rendered moot and academic. Indeed, the May 10, 2004

elections have come and gone. Except for the President and Vice-

President, the newly- elected national and local officials have been

proclaimed. Nonetheless, the Court finds it necessary to resolve the

merits of the substantive issues for future guidance of both the bench

and bar.29[29] Further, it is settled rule that courts will decide a

question otherwise moot and academic if it is ―capable of repetition,

yet evading review.‖30[30]

The Respondent COMELEC

Committed Grave Abuse Of

Discretion Amounting To Lack Or

Excess Of Jurisdiction In Issuing

Resolution No. 6712

The preliminary issues having been thus resolved, the Court shall

proceed to determine whether the respondent COMELEC committed

grave abuse of discretion amounting to lack or excess of jurisdiction

in promulgating the assailed resolution.

The Court rules in the affirmative.

An administrative body or tribunal acts without jurisdiction if it does

not have the legal power to determine the matter before it; there is

excess of jurisdiction where the respondent, being clothed with the

power to determine the matter, oversteps its authority as determined

by law.31[31] There is grave abuse of discretion justifying the

issuance of the writ of certiorari when there is a capricious and

whimsical exercise of his judgment as is equivalent to lack of

jurisdiction.32[32]

First. The assailed resolution usurps, under the guise of an

―unofficial‖ tabulation of election results based on a copy of the

election returns, the sole and exclusive authority of Congress to

canvass the votes for the election of President and Vice-President.

Article VII, Section 4 of the Constitution provides in part:

24

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, directed to the President of the Senate.

Upon receipt of the certificates of canvass, the President of the Senate

shall, not later than thirty days after the day of the election, open all

the certificates in the presence of the Senate and the House of

Representatives in joint public session, and the Congress, upon

determination of the authenticity and due execution thereof in the

manner provided by law, canvass the votes.

As early as January 28, 2004, Senate President Franklin M. Drilon

already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-

seated concern that the respondent COMELEC could not and should

not conduct any ―quick count‖ of the votes cast for the positions of

President and Vice-President. In his Letter dated February 2,

200433[33] addressed to Chairman Abalos, Senate President Drilon

reiterated his position emphasizing that ―any quick count to be

conducted by the Commission on said positions would in effect

constitute a canvass of the votes of the President and Vice-President,

which not only would be pre-emptive of the authority of Congress,

but would also be lacking of any constitutional authority.‖34[34]

Nonetheless, in disregard of the valid objection of the Senate

President, the COMELEC proceeded to promulgate the assailed

resolution. Such resolution directly infringes the authority of

Congress, considering that Section 4 thereof allows the use of the

third copy of the Election Returns (ERs) for the positions of

President, Vice-President, Senators and Members of the House of

Representatives, intended for the COMELEC, as basis for the

encoding and transmission of advanced precinct results, and in the

process, canvass the votes for the President and Vice-President,

ahead of the canvassing of the same votes by Congress.

Parenthetically, even the provision of Rep. Act No. 8436 confirms

the constitutional undertaking of Congress as the sole body tasked to

canvass the votes for the President and Vice-President. Section 24

thereof provides:

SEC. 24. Congress as the National Board of Canvassers for

President and Vice-President. -- The Senate and the House of

Representatives, in joint public session, shall compose the national

board of canvassers for president and vice-president. 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, directed to the president of the Senate. Upon receipt of

the certificates of canvass, the president of the Senate shall, not later

than thirty (30) days after the day of the election, open all the

certificates in the presence of the Senate and the House of

Representatives in joint public session, and the Congress upon

determination of the authenticity and the due execution thereof in the

manner provided by law, canvass all the results for president and

vice-president by consolidating the results contained in the data

storage devices submitted by the district, provincial and city boards

of canvassers and thereafter, proclaim the winning candidates for

president and vice-president.

The contention of the COMELEC that its tabulation of votes is not

prohibited by the Constitution and Rep. Act No. 8436 as such

tabulation is ―unofficial,‖ is puerile and totally unacceptable. If the

COMELEC is proscribed from conducting an official canvass of the

votes cast for the President and Vice-President, the COMELEC is,

with more reason, prohibited from making an ―unofficial‖ canvass of

said votes.

The COMELEC realized its folly and the merits of the objection of

the Senate President on the constitutionality of the resolution that it

decided not to conduct an ―unofficial‖ quick count of the results of

the elections for President and Vice-President. Commissioner Sadain

so declared during the hearing:

JUSTICE PUNO:

The word you are saying that within 36 hours after election, more or

less, you will be able to tell the people on the basis of your quick

count, who won the election, is that it?

COMM. SADAIN:

Well, it‘s not exactly like that, Your Honor. Because the fact of

winning the election would really depend on the canvassed results,

but probably, it would already give a certain degree of comfort to

certain politicians to people rather, as to who are leading in the

elections, as far as Senator down are concerned, but not to President

and Vice-President.

JUSTICE PUNO:

So as far as the Senatorial candidates involved are concerned, but you

don‘t give this assurance with respect to the Presidential and Vice-

Presidential elections which are more important?

COMM. SADAIN:

In deference to the request of the Senate President and the House

Speaker, Your Honor. According to them, they will be the ones

canvassing and proclaiming the winner, so it is their view that we

will be pre-empting their canvassing work and the proclamation of

the winners and we gave in to their request.35[35]

…

JUSTICE CALLEJO, [SR.]:

Perhaps what you are saying is that the system will minimize

―dagdag-bawas‖ but not totally eradicate ―dagdag-bawas‖?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CALLEJO, [SR.]:

Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that

there was a conference between the Speaker and the Senate President

and the Chairman during which the Senate President and the Speaker

25

voice[d] their objections to the electronic transmission results system,

can you share with us the objections of the two gentlemen?

COMM. SADAIN:

These was relayed to us Your Honor and their objection or request

rather was for us to refrain from consolidating and publishing the

results for presidential and vice-presidential candidates which we

have already granted Your Honors. So, there is going to be no

consolidation and no publication of the …

COMM. SADAIN:

Reason behind being that it is actually Congress that canvass that the

official canvass for this and proclaims the winner.36[36]

Second. The assailed COMELEC resolution contravenes the

constitutional provision that ―no money shall be paid out of the

treasury except in pursuance of an appropriation made by

law.‖37[37]

By its very terms, the electronic transmission and tabulation of the

election results projected under Resolution No. 6712 is ―unofficial‖

in character, meaning ―not emanating from or sanctioned or

acknowledged by the government or government body.38[38] Any

disbursement of public funds to implement this project is contrary to

the provisions of the Constitution and Rep. Act No. 9206, which is

the 2003 General Appropriations Act. The use of the COMELEC of

its funds appropriated for the AES for the ―unofficial‖ quick count

project may even be considered as a felony under Article 217 of the

Revised Penal Code, as amended.39[39]

Irrefragably, the implementation of the assailed resolution would

entail, in due course, the hiring of additional manpower, technical

services and acquisition of equipment, including computers and

software, among others. According to the COMELEC, it needed

P55,000,000 to operationalize the project, including the encoding

process.40[40] Hence, it would necessarily involve the disbursement

of public funds for which there must be the corresponding

appropriation.

The COMELEC posited during the hearing that the 2003 General

Appropriations Act has appropriated the amount needed for its

―unofficial‖ tabulation. We quote the transcript of stenographic notes

taken during the hearing:

JUSTICE VITUG:

And you mentioned earlier something about 55 million not being paid

as yet?

COMM. SADAIN:

This is an extra amount that we will be needing to operationalize.

JUSTICE VITUG:

And this has not yet been done?

COMM. SADAIN:

It has not yet been done, Your Honor.

JUSTICE VITUG:

Would you consider the funds that were authorized by you under the

General Appropriations Act as capable of being used for this

purpose?

COMM. SADAIN:

Yes, that‘s our position, Your Honor.41[41]

But then the COMELEC, through Commissioner Sadain, admitted

during the said hearing that although it had already approved the

assailed resolution, it was still looking for the P55,000,000 needed to

operationalize the project:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main

contract for 300 million but you have not signed the 55 million

supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Because you still don‘t have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the

money.

JUSTICE CARPIO:

Now, the encoding is crucial; without the encoding, the entire project

collapses?

COMM. SADAIN:

26

Yes.42[42]

Inexplicably, Commissioner Sadain contradicted himself when he

said that its Financial Department had already found the money, but

that proper documentation was forthcoming:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main

contract for 300 million but you have not signed the 55 million

supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Because you still don‘t have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the

money.

JUSTICE CARPIO:

Now, the encoding is crucial; without the encoding, the entire project

collapses?

COMM. SADAIN:

Yes.

JUSTICE CARPIO:

So, you have two (2) days to look for the 55 million, you have signed

the contract on the main contract and if you don‘t get that 55 million,

that 300 million main contract goes to waste, because you cannot

encode?

COMM. SADAIN:

It‘s just a matter of proper documentation, Your Honor, because I

was informed by our Finance Department that the money is there.

JUSTICE CARPIO:

So, you have found the money already?

COMM. SADAIN:

Yes, Your Honor.43[43]

Earlier, during the April 27, 2004 meeting of the COMELEC En

Banc, the Commissioners expressed their serious concerns about the

lack of funds for the project, the propriety of using the funds for

Phase III of its modernization, and the possibility of realigning funds

to finance the project:

Comm. Tuason:

May I just request all the parties who are in here na whatever is said

here should be confined within the four walls of this room and the

minutes so that walang masyadong problema.

Comm. Borra:

Sa akin lang, we respect each other‘s opinion. I will not make any

observations. I will just submit my own memo to be incorporated in

the minutes.

Comm. Tuason:

Commissioner Borra will submit a comment to be attached to the

minutes but not on the resolution. Ako naman, I will just make it on

record my previous reservation. I do not have any objection as to the

Phase III modernization project itself. My main concern is the

budget. I would like to make it on record that the budget for Phase

III should be taken from the modernization program fund because

Phase III is definitely part of the modernization project. Other funds,

for instance other funds to be used for national elections may not be

proper for realignment. That is why I am saying that the funds to be

used for Phase III should properly come from the modernization.

The other reservation is that the Election Officers are now plagued

with so much work such as the preparation of the list of voters and

their concern in their respective areas. They were saying to me,

specially so in my own region, that to burden them with another

training at this point in time will make them loose (sic) focus on what

they are really doing for the national elections and what they are

saying is that they should not be subjected to any training anymore.

And they also said that come canvassing time, their priority would be

to canvass first before they prepare the certificate of votes to be fed to

the encoders [to be fed to the encoders] for electronic transmission. I

share the sentiments of our people in the field. That is also one of my

reservations. Thank you.

Comm. Garcillano:

I also have my observations regarding the financial restraint that we

are facing if the money that is going to be used for this is taken from

the Phase II, I don‘t think there is money left.

Comm. Borra:

There is no more money in Phase II because the budget for Phase II is

1.3 Billion. The award on the contract for Phase II project is 1.248

billion. So the remaining has been allocated for additional expenses

for the technical working group and staff for Phase II.

Comm. Garcillano:

I also have one problem. We have to have additional people to man

this which I think is already being taken cared of. Third is, I know

that this will disrupt the canvassing that is going to be handled by our

27

EO and Election Assistant. I do not know if it is given to somebody

(inaudible)

Comm. Tuason:

Those are your reservations.

Comm. Barcelona:

As far as I am concerned, I also have my reservations because I have

the same experience as Commissioner Tuason when I went to Region

IX and Caraga. Our EOs and PES‘ expressed apprehension over the

additional training period that they may have to undergo although,

they say, that if that is an order they will comply but it will be

additional burden on them. I also share the concern of Commissioner

Tuason with regard to the budget that should be taken from the

modernization budget.

Comm. Borra:

For the minutes, my memo is already prepared. I will submit it in

detail. On three counts naman yan eh – legal, second is

technical/operational and third is financial.

Comm. Sadain:

Ako naman, for my part as the CIC for Phase III, we were left with no

choice but to implement Phase III inasmuch as expenses has already

been incurred in Phase III to the tune of almost 100% at the time

when the Phase II contract was nullified. So if we stop the

implementation of Phase III just because Phase II was nullified,

which means that there would be no consolidation and accounting –

consolidation for the machines, then it would be again 300 million

pesos down the drain. Necessarily there would be additional expense

but we see this as a consequence of the loss of Phase II. I share the

view of Comm. Tuason that as much as possible this should be taken

from the modernization fund as much as this is properly

modernization concern. However, I would like to open myself to the

possibility na in case wala talaga, we might explore the possibility of

realigning funds although that might not …(inaudible). Now with

regards the legality, I think what Commissioner Borra has derived his

opinion but I would like to think the legality issue must have been

settled already as early as when we approved the modernization

program involving all three phases although we also grant the benefit

of the argument for Commissioner Borra if he thinks that there is

going to be a legal gap for the loss of Phase II. With regards the

concern with the Election Officers, I also share the same concern. In

fact, on this matter alone, we try to make the GI as simple as possible

so that whatever burden we will be giving to the EOs and EAs will be

minimized. As in fact, we will be recommending that the EOs will

no longer be bothered to attend the training. They can probably just

sit in for the first hour and then they can go on with their normal

routine and then leave the encoders as well as the reception officers

to attend the training because there (sic) are the people who will

really be doing the ministerial, almost mechanical, work of encoding

and transmitting the election results. Yun lang.44[44]

We have reviewed Rep. Act No. 9206, the General Appropriations

Act, which took effect on April 23, 2003 and find no appropriation

for the project of the COMELEC for electronic transmission of

―unofficial‖ election results. What is appropriated therein is the

amount of P225,000,000 of the capital outlay for the modernization

of the electoral system.

B. PROJECTS Maintenance & Other

Operating Expenses

Capital Outlays Total

I. Locally-Funded Projects

a. For the Modernization of Electoral System

225,000,000

225,000,000

b. FY 2003 Preparatory Activities for National

Elections

250,000,000

250,000,000

c. Upgrading of Voters‘ Database 125,000,000 125,000,000

d. Conduct of Special Election to

fill the vacancy in the Third District

of Cavite

6,500,000

6,500,000

e. Implementation of Absentee

Voting Act of 2003 (RA 9189)

300,000,000

==========

=========

300,000,000

==========

Sub-Total, Locally-Funded Projects 681,500,000 225,000,000 300,000,00045[45]

Under paragraph 3 of the special provisions of Rep. Act No. 9206,

the amount of P225,000,000 shall be used primarily for the

establishment of the AES prescribed under Rep. Act No. 8436, viz:

3. Modernization of Electoral System. The appropriations herein

authorized for the Modernization of the Electoral System in the

amount of Two Hundred Twenty-Five Million Pesos

(P225,000,000.00) shall be used primarily for the establishment of

the automated election system, prescribed under Republic Act No.

8436, particularly for the process of voting, counting of votes and

canvassing/consolidation of results of the national and local

elections.46[46]

Section 52 of Rep. Act No. 9206 proscribes any change or

modification in the expenditure items authorized thereunder. Thus:

Sec. 52. Modification of Expenditure Components. Unless

specifically authorized in this Act, no change or modification shall be

made in the expenditure items in this Act and other appropriations

laws unless in cases of augmentation from savings in appropriations

as authorized under Section 25(5), Article VI of the 1987 Philippine

Constitution.

Neither can the money needed for the project be taken from the

COMELEC‘s savings, if any, because it would be violative of Article

VI, Section 25 (5)47[47] of the 1987 Constitution.

28

The power to augment from savings lies dormant until authorized by

law.48[48] In this case, no law has, thus, far been enacted authorizing

the respondent COMELEC to transfer savings from another item in

its appropriation, if there are any, to fund the assailed resolution. No

less than the Secretary of the Senate certified that there is no law

appropriating any amount for an ―unofficial‖ count and tabulation of

the votes cast during the May 10, 2004 elections:

CERTIFICATION

I hereby certify that per records of the Senate, Congress has not

legislated any appropriation intended to defray the cost of an

unofficial count, tabulation or consolidation of the votes cast during

the May 10, 2004 elections.

May 11, 2004. Pasay City, Philippines.

What is worrisome is that despite the concerns of the Commissioners

during its En Banc meeting on April 27, 2004, the COMELEC

nevertheless approved the assailed resolution the very next day. The

COMELEC had not executed any supplemental contract for the

implementation of the project with PMSI. Worse, even in the absence

of a certification of availability of funds for the project, it approved

the assailed resolution.

Third. The assailed resolution disregards existing laws which

authorize solely the duly-accredited citizens‘ arm to conduct the

―unofficial‖ counting of votes. Under Section 27 of Rep. Act No.

7166, as amended by Rep. Act No. 8173,49[49] and reiterated in

Section 18 of Rep. Act No. 8436,50[50] the accredited citizen‘s arm -

in this case, NAMFREL - is exclusively authorized to use a copy of

the election returns in the conduct of an ―unofficial‖ counting of the

votes, whether for the national or the local elections. No other entity,

including the respondent COMELEC itself, is authorized to use a

copy of the election returns for purposes of conducting an

―unofficial‖ count. In addition, the second or third copy of the

election returns, while required to be delivered to the COMELEC

under the aforementioned laws, are not intended for undertaking an

―unofficial‖ count. The aforesaid COMELEC copies are archived

and unsealed only when needed by the respondent COMELEC to

verify election results in connection with resolving election disputes

that may be imminent. However, in contravention of the law, the

assailed Resolution authorizes the so-called Reception Officers (RO),

to open the second or third copy intended for the respondent

COMELEC as basis for the encoding and transmission of advanced

―unofficial‖ precinct results. This not only violates the exclusive

prerogative of NAMFREL to conduct an ―unofficial‖ count, but also

taints the integrity of the envelopes containing the election returns, as

well as the returns themselves, by creating a gap in its chain of

custody from the Board of Election Inspectors to the COMELEC.

Fourth. Section 52(i) of the Omnibus Election Code, which is cited

by the COMELEC as the statutory basis for the assailed resolution,

does not cover the use of the latest technological and election devices

for ―unofficial‖ tabulations of votes. Moreover, the COMELEC

failed to notify the authorized representatives of accredited political

parties and all candidates in areas affected by the use or adoption of

technological and electronic devices not less than thirty days prior to

the effectivity of the use of such devices. Section 52(i) reads:

SEC. 52. Powers and functions of the Commission on Elections. – In

addition to the powers and functions conferred upon it by the

Constitution, the Commission shall have exclusive charge of the

enforcement and administration of all laws relative to the conduct of

elections for the purpose of ensuring free, orderly and honest

elections, and shall :

…

(i) Prescribe the use or adoption of the latest technological and

electronic devices, taking into account the situation prevailing in the

area and the funds available for the purpose: Provided, That the

Commission shall notify the authorized representatives of accredited

political parties and candidates in areas affected by the use or

adoption of technological and electronic devices not less than thirty

days prior to the effectivity of the use of such devices.

From the clear terms of the above provision, before the COMELEC

may resort to and adopt the latest technological and electronic

devices for electoral purposes, it must act in accordance with the

following conditions:

(a) Take into account the situation prevailing in the area and the

funds available for the purpose; and,

(b) Notify the authorized representatives of accredited political

parties and candidates in areas affected by the use or adoption of

technological and electronic devices not less than thirty days prior to

the effectivity of the use of such devices.

It is quite obvious that the purpose of this provision is to accord to all

political parties and all candidates the opportunity to object to the

effectiveness of the proposed technology and devices, and, if they are

so minded not to object, to allow them ample time to field their own

trusted personnel especially in far flung areas and to take other

necessary measures to ensure the reliability of the proposed electoral

technology or device.

As earlier pointed out, the assailed resolution was issued by the

COMELEC despite most of the Commissioners‘ apprehensions

regarding the legal, operational and financial impediments thereto.

More significantly, since Resolution No. 6712 was made effective

immediately a day after its issuance on April 28, 2004, the

respondent COMELEC could not have possibly complied with the

thirty-day notice requirement provided under Section 52(i) of the

Omnibus Election Code. This indubitably violates the constitutional

right to due process of the political parties and candidates. The

Office of the Solicitor General (OSG) concedes this point, as it

opines that ―the authorized representatives of accredited political

parties and candidates should have been notified of the adoption of

the electronic transmission of election returns nationwide at the latest

on April 7, 2004, April 8 and 9 being Holy Thursday and Good

Friday, pursuant to Section 52(i) of the Omnibus Election

Code.‖51[51] Furthermore, during the hearing on May 18, 2004,

Commissioner Sadain, who appeared for the COMELEC,

unabashedly admitted that it failed to notify all the candidates for the

2004 elections, as mandated by law:

29

JUSTICE CARPIO:

You stated that you have notified in writing all the political parties

and candidates as required in Section 52 (i)?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, how many candidates are there nationwide now?

COMM. SADAIN:

I must admit you Honor we were not able to notify the candidates but

we notified the politicians.

JUSTICE CARPIO:

Yes, but what does the law state? Read the law please.

COMM. SADAIN:

Yes, Your Honor. I understand that it includes candidates.

JUSTICE CARPIO:

And there are how many candidates nationwide running in this

election?

COMM. SADAIN:

Hundreds of thousands, Your Honor.

JUSTICE CARPIO:

Hundreds of thousands, so you mean you just notified the political

parties not the candidates?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

And you think that is substantial compliance, you would notify how

many political parties as against hundreds of thousands of

candidates?

COMM. SADAIN:

Yes, Your Honor, we notified the major political parties, Your

Honor.

JUSTICE CARPIO:

Only the major political parties?

COMM. SADAIN:

Including party list?

JUSTICE CARPIO:

But not the candidates, individual candidates?

COMM. SADAIN:

We were not able to do that, Your Honor, I must admit.

JUSTICE CARPIO:

So, you did not notify hundreds of thousands of candidates?

COMM. SADAIN:

No, Your Honors.52[52]

The respondent COMELEC has, likewise, failed to submit any

resolution or document to prove that it had notified all political

parties of the intended adoption of Resolution No. 6712, in

compliance with Section 52(i) of the Omnibus Election Code. This

notwithstanding the fact that even long before the issuance of the

assailed resolution, it had admittedly entered into a contract on April

15, 200353[53] and acquired facilities pertaining to the

implementation of the electronic transmission and official tabulation

of election results. As correctly pointed out by the petitioners-in-

intervention, the invitations dated January 15, 2004 regarding the

January 20, 2004 COMELEC Conference with the political parties on

election security measures did not mention electronic transmission of

advanced results, much less the formal adoption of the purpose of the

conference. Such ―notices‖ merely invited the addressee thereof or

its/his authorized representative to a conference where the

COMELEC would show a sample of the official ballot to be used in

the elections, discuss various security measures that COMELEC had

put in place, and solicit suggestions to improve the administration of

the polls.54[54] Further, the invitations purportedly sent out to the

political parties regarding the April 6, 2004 Field Test of the

Electronic Transmission, Consolidation and Dissemination System to

be conducted by the COMELEC appear to have been sent out in the

late afternoon of April 5, 2004, after office hours. There is no

showing that all the political parties attended the Field Test, or

received the invitations. More importantly, the said invitations did

not contain a formal notice of the adoption of a technology, as

required by Section 52(i) of the Omnibus Election Code.55[55]

Fifth. The assailed resolution has no constitutional and statutory

basis. That respondent COMELEC is the sole body tasked to

―enforce and administer all laws and regulations relative to the

30

conduct of an election, plebiscite, initiative, referendum and

recall‖56[56] and to ensure ―free, orderly, honest, peaceful and

credible elections‖57[57] is beyond cavil. That it possesses the

power to promulgate rules and regulations in the performance of its

constitutional duties is, likewise, undisputed. However, the duties of

the COMELEC under the Constitution, Rep. Act No. 7166, and other

election laws are carried out, at all times, in its official capacity.

There is no constitutional and statutory basis for the respondent

COMELEC to undertake a separate and an ―unofficial‖ tabulation of

results, whether manually or electronically. Indeed, by conducting

such ―unofficial‖ tabulation of the results of the election, the

COMELEC descends to the level of a private organization, spending

public funds for the purpose. Besides, it is absurd for the COMELEC

to conduct two kinds of electoral counts – a slow but ―official‖ count,

and an alleged quicker but ―unofficial‖ count, the results of each may

substantially differ.

Clearly, the assailed resolution is an implementation of Phase III of

the modernization program of the COMELEC under Rep. Act No.

8436. Section 2 of the assailed resolution expressly refers to the

Phase III-Modernization Project of the COMELEC. Since this Court

has already scrapped the contract for Phase II of the AES, the

COMELEC cannot as yet implement the Phase III of the program.

This is so provided in Section 6 of Rep. Act No. 8436.

SEC. 6. Authority to Use an Automated Election System. -- To carry

out the above-stated policy, the Commission on Elections, herein

referred to as the Commission, is hereby authorized to use an

automated election system, herein referred to as the System, for the

process of voting, counting of votes and canvassing/consolidation of

results of the national and local elections: Provided, however, That

for the May 11, 1998 elections, the System shall be applicable in all

areas within the country only for the positions of president, vice-

president, senators and parties, organizations or coalitions

participating under the party-list system.

To achieve the purpose of this Act, the Commission is authorized to

procure by purchase, lease or otherwise, any supplies, equipment,

materials and services needed for the holding of the elections by an

expedited process of public bidding of vendors, suppliers or lessors:

Provided, That the accredited political parties are duly notified of and

allowed to observe but not to participate in the bidding. If in spite of

its diligent efforts to implement this mandate in the exercise of this

authority, it becomes evident by February 9, 1998 that the

Commission cannot fully implement the automated election system

for national positions in the May 11, 1998 elections, the elections for

both national and local positions shall be done manually except in the

Autonomous Region in Muslim Mindanao (ARMM) where the

automated election system shall be used for all positions.

The AES provided in Rep. Act No. 8436 constitutes the entire

―process of voting, counting of votes and canvassing/consolidation of

results of the national and local elections‖ corresponding to the Phase

I, Phase II and Phase III of the AES of the COMELEC. The three

phases cannot be effected independently of each other. The

implementation of Phase II of the AES is a condition sine qua non to

the implementation of Phase III. The nullification by this Court of

the contract for Phase II of the System effectively put on hold, at least

for the May 10, 2004 elections, the implementation of Phase III of the

AES.

Sixth. As correctly observed by the petitioner, there is a great

possibility that the ―unofficial‖ results reflected in the electronic

transmission under the supervision and control of the COMELEC

would significantly vary from the results reflected in the COMELEC

official count. The latter follows the procedure prescribed by the

Omnibus Election Code, which is markedly different from the

procedure envisioned in the assailed resolution.

Under the Omnibus Election Code, after the votes are cast and the

polls closed, the Board of Election Inspectors (BEI) for each precinct

is enjoined to publicly count the votes and record the same

simultaneously on the tally boards and on two sets of ERs. Each set

of the ER is prepared in eight (8) copies. After the ERs are

accomplished, they are forwarded to the Municipal Board of

Canvassers (MBC), which would canvass all the ERs and proclaim

the elected municipal officials. All the results in the ERs are

transposed to the statements of votes (SOVs) by precinct. These

SOVs are then transferred to the certificates of canvass (COCs)

which are, in turn, brought to the Provincial Board of Canvassers

(PBC). Subsequently, the PBC would canvass all the COCs from

various municipalities and proclaim the elected provincial officials,

including those to the House of Representatives. The PBC would

then prepare two sets of Provincial Certificates of Canvass (PCOCs).

One set is forwarded to Congress for its canvassing of the results for

the President and Vice-President. The other set is forwarded to the

COMELEC for its canvassing of the results for Senators.

As the results are transposed from one document to another, and as

each document undergoes the procedure of canvassing by various

Boards of Canvassers, election returns and certificates of canvass are

objected to and at times excluded and/or deferred and not tallied, long

after the pre-proclamation controversies are resolved by the canvass

boards and the COMELEC.

On the other hand, under the assailed resolution, the precinct results

of each city and municipality received by the ETCs would be

immediately electronically transmitted to the NCC. Such data, which

have not undergone the process of canvassing, would expectedly be

dissimilar to the data on which the official count would be based.

Resultantly, the official and unofficial canvass, both to be

administered by the respondent COMELEC, would most likely not

tally. In the past elections, the ―unofficial‖ quick count conducted by

the NAMFREL had never tallied with that of the official count of the

COMELEC, giving rise to allegations of ―trending‖ and confusion.

With a second ―unofficial‖ count to be conducted by the official

election body, the respondent COMELEC, in addition to its official

count, allegations of ―trending,‖ would most certainly be aggravated.

As a consequence, the electoral process would be undermined.

The only intimated utility claimed by the COMELEC for the

―unofficial‖ electronic transmission count is to avert the so-called

―dagdag-bawas.‖ The purpose, however, as the petitioner properly

characterizes it, is a total sham. The Court cannot accept as tenable

the COMELEC‘s profession that from the results of the ―unofficial‖

count, it would be able to validate the credibility of the official

tabulation. To sanction this process would in effect allow the

COMELEC to preempt or prejudge an election question or dispute

which has not been formally brought before it for quasi-judicial

cognizance and resolutions.

31

Moreover, the Court doubts that the problem of ―dagdag-bawas‖

could be addressed by the implementation of the assailed resolution.

It is observed that such problem arises because of the element of

human intervention. In the prevailing set up, there is human

intervention because the results are manually tallied, appreciated, and

canvassed. On the other hand, the electronic transmission of results

is not entirely devoid of human intervention. The crucial stage of

encoding the precinct results in the computers prior to the

transmission requires human intervention. Under the assailed

resolution, encoding is accomplished by employees of the PMSI.

Thus, the problem of ―dagdag-bawas‖ could still occur at this

particular stage of the process.

As it stands, the COMELEC ―unofficial‖ quick count would be but a

needless duplication of the NAMFREL ―quick‖ count, an illegal and

unnecessary waste of government funds and effort.

Conclusion

The Court is mindful of the salutary goals that the respondent

COMELEC had envisioned in promulgating the assailed resolution,

to wit: [t]o renew the public‘s confidence in the Philippine Electoral

System by:

1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation;

4. Providing timely, fast and accurate information to provide

the public re election results;

5. Enabling the validation of its own official count and other

counts;

6. Having an audit trail in its own account.58[58]

Doubtless, these are laudable intentions. But the rule of law requires

that even the best intentions must be carried out within the

parameters of the Constitution and the law. Verily, laudable purposes

must be carried out by legal methods.59[59]

WHEREFORE, the petition is GRANTED. The assailed Resolution

No. 6712 dated April 28, 2004 issued by the Commission on

Elections (COMELEC) En Banc is hereby declared NULL AND

VOID.

SO ORDERED

Brillantes v. comelec digest

G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner,

JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J.

ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M.

DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES,

HONESTO M. GUTIERREZ, ISLETA, AND JOSE A.

BERNAS, Petitioners-in-Intervention,

vs.COMMISSION ON ELECTIONS, respondent.

Facts:

Comelec issued resolutions adopting an Automated Elections System

including the assailed resolution, Resolution 6712, which provides

for the electronic transmission of advanced result of ―unofficial‖

count. Petitioners claimed that the resolution would allow the

preemption and usurpation of the exclusive power of Congress to

canvass the votes for President and Vice-President and would

likewise encroach upon the authority of NAMFREL, as the citizens‘

accredited arm, to conduct the "unofficial" quick count as provided

under pertinent election laws. Comelec contended that the resolution

was promulgated in the exercise of its executive and administrative

power "to ensure free, orderly, honest, peaceful and credible

elections‖ Comelec added that the issue is beyond judicial

determination.

Issue:

Whether or not Comelec's promulgation of Resolution 6712 was

justified.

Ruling:

The Comelec committed grave abuse of discretion amounting to lack

or excess of jurisdiction in issuing Resolution 6712. The issue

squarely fell within the ambit of the expanded jurisdiction of the

court.

Article VII, Section 4 of the Constitution, further bolstered by RA

8436, vest upon Congress the sole and exclusive authority to

officially canvass the votes for the elections of President and Vice-

President. Section 27 of Rep. Act No. 7166, as amended by Rep. Act

No. 8173, and reiterated in Section 18 of Rep. Act No. 8436, solely

authorize NAMFREL, the duly-accredited citizen‘s arm to conduct

the ―unofficial counting of votes for the national or local elections.

The quick count under the guise of an ―unofficial‖ tabulation would

not only be preemptive of the authority of congress and NAMFREL,

but would also be lacking constitutional and/or statutory basis.

Moreover, the assailed COMELEC resolution likewise contravened

the constitutional provision that "no money shall be paid out of the

treasury except in pursuance of an appropriation made by law." It

being ―unofficial‖, any disbursement of public fund would be

32

contrary to the provisions of the Constitution and Rep. Act No. 9206,

which is the 2003 General Appropriations Act.

The Omnibus Election Code in providing the powers and functions of

the Commission subjects the same to certain conditions with respect

to the adoption of the latest technological and electronic devices, to

wit: (1)consideration of the area and available funds (2) notification

to all political parties and candidates. The aforementioned conditions

were found to have not been substantially met.

Resolution 6712 was null and void.

Bayani v. Zamora

[G.R. No. 138570. October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA

MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina

Independiente), BISHOP ELMER BOLOCAN (United Church of

Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG

MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO,

GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW

CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO

ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO

SIAZON, DEFENSE SECRETARY ORLANDO MERCADO,

BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT

MARCELO FERNAN, SENATOR FRANKLIN DRILON,

SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and

SENATOR FRANCISCO TATAD, respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION,

INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT

INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES,

petitioners, vs. HON. RONALDO B. ZAMORA, as Executive

Secretary, HON. ORLANDO MERCADO, as Secretary of National

Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of

Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R.

OSMEÑA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO

B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B.

MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON,

BLAS F. OPLE and RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its

National President, Jose Aguila Grapilon, petitioners, vs. JOSEPH

EJERCITO ESTRADA, in his capacity as President, Republic of the

Philippines, and HON. DOMINGO SIAZON, in his capacity as

Secretary of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA

QUEZON-AVENCEÑA, ROLANDO SIMBULAN, PABLITO V.

SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO,

JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V.

SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS

FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.

(MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE

SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF

NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B.

FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.

BIAZON, AND ALL OTHER PERSONS ACTING THEIR

CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION

IN RELATION TO THE VISITING FORCES AGREEMENT

(VFA), respondents.

D E C I S I O N

BUENA, J.:

Confronting the Court for resolution in the instant consolidated

petitions for certiorari and prohibition are issues relating to, and

borne by, an agreement forged in the turn of the last century between

the Republic of the Philippines and the United States of America -the

Visiting Forces Agreement.

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America

forged a Military Bases Agreement which formalized, among others,

the use of installations in the Philippine territory by United States

military personnel. To further strengthen their defense and security

relationship, the Philippines and the United States entered into a

Mutual Defense Treaty on August 30, 1951. Under the treaty, the

parties agreed to respond to any external armed attack on their

territory, armed forces, public vessels, and aircraft.i[1]

In view of the impending expiration of the RP-US Military Bases

Agreement in 1991, the Philippines and the United States negotiated

for a possible extension of the military bases agreement. On

September 16, 1991, the Philippine Senate rejected the proposed RP-

US Treaty of Friendship, Cooperation and Security which, in effect,

would have extended the presence of US military bases in the

Philippines.ii[2] With the expiration of the RP-US Military Bases

Agreement, the periodic military exercises conducted between the

two countries were held in abeyance. Notwithstanding, the defense

and security relationship between the Philippines and the United

States of America continued pursuant to the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense

Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with

the Philippine panel, headed by Foreign Affairs Undersecretary

Rodolfo Severino Jr., to exchange notes on ―the complementing

strategic interests of the United States and the Philippines in the Asia-

Pacific region.‖ Both sides discussed, among other things, the

possible elements of the Visiting Forces Agreement (VFA for

brevity). Negotiations by both panels on the VFA led to a

consolidated draft text, which in turn resulted to a final series of

conferences and negotiationsiii[3] that culminated in Manila on

January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos

approved the VFA, which was respectively signed by public

respondent Secretary Siazon and Unites States Ambassador Thomas

Hubbard on February 10, 1998.

On October 5, 1998, President Joseph E. Estrada, through respondent

Secretary of Foreign Affairs, ratified the VFA.iv[4]

33

On October 6, 1998, the President, acting through respondent

Executive Secretary Ronaldo Zamora, officially transmitted to the

Senate of the Philippines,v[5] the Instrument of Ratification, the

letter of the Presidentvi[6] and the VFA, for concurrence pursuant to

Section 21, Article VII of the 1987 Constitution. The Senate, in turn,

referred the VFA to its Committee on Foreign Relations, chaired by

Senator Blas F. Ople, and its Committee on National Defense and

Security, chaired by Senator Rodolfo G. Biazon, for their joint

consideration and recommendation. Thereafter, joint public hearings

were held by the two Committees.vii[7]

On May 3, 1999, the Committees submitted Proposed Senate

Resolution No. 443viii[8] recommending the concurrence of the

Senate to the VFA and the creation of a Legislative Oversight

Committee to oversee its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was

approved by the Senate, by a two-thirds (2/3) voteix[9] of its

members. Senate Resolution No. 443 was then re-numbered as

Senate Resolution No. 18.x[10]

On June 1, 1999, the VFA officially entered into force after an

Exchange of Notes between respondent Secretary Siazon and United

States Ambassador Hubbard.

The VFA, which consists of a Preamble and nine (9) Articles,

provides for the mechanism for regulating the circumstances and

conditions under which US Armed Forces and defense personnel may

be present in the Philippines, and is quoted in its full text, hereunder:

―Article I

Definitions

―As used in this Agreement, ‗United States personnel‘ means

United States military and civilian personnel temporarily in the

Philippines in connection with activities approved by the

Philippine Government.

―Within this definition:

―1. The term ‗military personnel‘ refers to military members of

the United States Army, Navy, Marine Corps, Air Force, and Coast

Guard.

―2. The term ‗civilian personnel‘ refers to individuals who are

neither nationals of, nor ordinary residents in the Philippines and who

are employed by the United States armed forces or who are

accompanying the United States armed forces, such as employees of

the American Red Cross and the United Services Organization.

―Article II

Respect for Law

―It is the duty of the United States personnel to respect the laws

of the Republic of the Philippines and to abstain from any

activity inconsistent with the spirit of this agreement, and, in

particular, from any political activity in the Philippines. The

Government of the United States shall take all measures within

its authority to ensure that this is done.

―Article III

Entry and Departure

―1. The Government of the Philippines shall facilitate the

admission of United States personnel and their departure

from the Philippines in connection with activities covered

by this agreement.

―2. United States military personnel shall be exempt from

passport and visa regulations upon entering and departing

the Philippines.

―3. The following documents only, which shall be presented on

demand, shall be required in respect of United States

military personnel who enter the Philippines:

―(a) personal identity card issued by the appropriate

United States authority showing full name, date of

birth, rank or grade and service number (if any),

branch of service and photograph;

―(b) individual or collective document issued by the

appropriate United States authority, authorizing the

travel or visit and identifying the individual or

group as United States military personnel; and

―(c) the commanding officer of a military aircraft or

vessel shall present a declaration of health, and

when required by the cognizant representative of

the Government of the Philippines, shall conduct a

quarantine inspection and will certify that the

aircraft or vessel is free from quarantinable

diseases. Any quarantine inspection of United

States aircraft or United States vessels or cargoes

thereon shall be conducted by the United States

commanding officer in accordance with the

international health regulations as promulgated by

the World Health Organization, and mutually

agreed procedures.

―4. United States civilian personnel shall be exempt from visa

requirements but shall present, upon demand, valid

passports upon entry and departure of the Philippines.

―5. If the Government of the Philippines has requested the

removal of any United States personnel from its territory,

the United States authorities shall be responsible for

receiving the person concerned within its own territory or

otherwise disposing of said person outside of the

Philippines.

―Article IV

Driving and Vehicle Registration

―1. Philippine authorities shall accept as valid, without test or

fee, a driving permit or license issued by the appropriate

United States authority to United States personnel for the

operation of military or official vehicles.

34

―2. Vehicles owned by the Government of the United States

need not be registered, but shall have appropriate markings.

―Article V

Criminal Jurisdiction

―1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over

United States personnel with respect to offenses

committed within the Philippines and punishable under

the law of the Philippines.

(b) United States military authorities shall have the

right to exercise within the Philippines all criminal and

disciplinary jurisdiction conferred on them by the

military law of the United States over United States

personnel in the Philippines.

―2. (a) Philippine authorities exercise exclusive

jurisdiction over United States personnel with

respect to offenses, including offenses relating to

the security of the Philippines, punishable under

the laws of the Philippines, but not under the laws

of the United States.

(b) United States authorities exercise exclusive

jurisdiction over United States personnel with

respect to offenses, including offenses relating to

the security of the United States, punishable

under the laws of the United States, but not under

the laws of the Philippines.

(c) For the purposes of this paragraph and paragraph

3 of this article, an offense relating to security

means:

(1) treason;

(2) sabotage, espionage or violation of any

law relating to national defense.

―3. In cases where the right to exercise jurisdiction is

concurrent, the following rules shall apply:

(a) Philippine authorities shall have the primary right to

exercise jurisdiction over all offenses committed by

United States personnel, except in cases provided for in

paragraphs 1(b), 2 (b), and 3 (b) of this Article.

(b) United States military authorities shall have the

primary right to exercise jurisdiction over United States

personnel subject to the military law of the United

States in relation to.

(1) offenses solely against the property or security

of the United States or offenses solely against the

property or person of United States personnel; and

(2) offenses arising out of any act or omission done

in performance of official duty.

(c) The authorities of either government may request

the authorities of the other government to waive their

primary right to exercise jurisdiction in a particular

case.

(d) Recognizing the responsibility of the United States

military authorities to maintain good order and

discipline among their forces, Philippine authorities

will, upon request by the United States, waive their

primary right to exercise jurisdiction except in cases of

particular importance to the Philippines. If the

Government of the Philippines determines that the case

is of particular importance, it shall communicate such

determination to the United States authorities within

twenty (20) days after the Philippine authorities receive

the United States request.

(e) When the United States military commander

determines that an offense charged by authorities of the

Philippines against United states personnel arises out of

an act or omission done in the performance of official

duty, the commander will issue a certificate setting

forth such determination. This certificate will be

transmitted to the appropriate authorities of the

Philippines and will constitute sufficient proof of

performance of official duty for the purposes of

paragraph 3(b)(2) of this Article. In those cases where

the Government of the Philippines believes the

circumstances of the case require a review of the duty

certificate, United States military authorities and

Philippine authorities shall consult immediately.

Philippine authorities at the highest levels may also

present any information bearing on its validity. United

States military authorities shall take full account of the

Philippine position. Where appropriate, United States

military authorities will take disciplinary or other action

against offenders in official duty cases, and notify the

Government of the Philippines of the actions taken.

(f) If the government having the primary right does not

exercise jurisdiction, it shall notify the authorities of the

other government as soon as possible.

(g) The authorities of the Philippines and the United

States shall notify each other of the disposition of all

cases in which both the authorities of the Philippines

and the United States have the right to exercise

jurisdiction.

―4. Within the scope of their legal competence, the authorities of the

Philippines and United States shall assist each other in the arrest of

United States personnel in the Philippines and in handling them over

to authorities who are to exercise jurisdiction in accordance with the

provisions of this article.

―5. United States military authorities shall promptly notify Philippine

authorities of the arrest or detention of United States personnel who

are subject of Philippine primary or exclusive jurisdiction. Philippine

authorities shall promptly notify United States military authorities of

the arrest or detention of any United States personnel.

35

―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.

―7. Within the scope of their legal authority, United States and

Philippine authorities shall assist each other in the carrying out of all

necessary investigation into offenses and shall cooperate in providing

for the attendance of witnesses and in the collection and production

of evidence, including seizure and, in proper cases, the delivery of

objects connected with an offense.

―8. When United States personnel have been tried in

accordance with the provisions of this Article and have been

acquitted or have been convicted and are serving, or have served their

sentence, or have had their sentence remitted or suspended, or have

been pardoned, they may not be tried again for the same offense in

the Philippines. Nothing in this paragraph, however, shall prevent

United States military authorities from trying United States personnel

for any violation of rules of discipline arising from the act or

omission which constituted an offense for which they were tried by

Philippine authorities.

―9. When United States personnel are detained, taken into

custody, or prosecuted by Philippine authorities, they shall be

accorded all procedural safeguards established by the law of the

Philippines. At the minimum, United States personnel shall be

entitled:

(a) To a prompt and speedy trial;

(b) To be informed in advance of trial of the specific

charge or charges made against them and to have

reasonable time to prepare a defense;

(c) To be confronted with witnesses against them

and to cross examine such witnesses;

(d) To present evidence in their defense and to have

compulsory process for obtaining witnesses;

(e) To have free and assisted legal representation of

their own choice on the same basis as nationals of the

Philippines;

(f) To have the service of a competent interpreter;

and

(g) To communicate promptly with and to be visited

regularly by United States authorities, and to have such

authorities present at all judicial proceedings. These

proceedings shall be public unless the court, in

accordance with Philippine laws, excludes persons who

have no role in the proceedings.

―10. The confinement or detention by Philippine authorities of United

States personnel shall be carried out in facilities agreed on by

appropriate Philippine and United States authorities. United States

Personnel serving sentences in the Philippines shall have the right to

visits and material assistance.

―11. United States personnel shall be subject to trial only in

Philippine courts of ordinary jurisdiction, and shall not be subject to

the jurisdiction of Philippine military or religious courts.

―Article VI

Claims

―1. Except for contractual arrangements, including United States

foreign military sales letters of offer and acceptance and leases of

military equipment, both governments waive any and all claims

against each other for damage, loss or destruction to property of each

other‘s armed forces or for death or injury to their military and

civilian personnel arising from activities to which this agreement

applies.

―2. For claims against the United States, other than contractual claims

and those to which paragraph 1 applies, the United States

Government, in accordance with United States law regarding foreign

claims, will pay just and reasonable compensation in settlement of

meritorious claims for damage, loss, personal injury or death, caused

by acts or omissions of United States personnel, or otherwise incident

to the non-combat activities of the United States forces.

―Article VII

Importation and Exportation

―1. United States Government equipment, materials, supplies, and

other property imported into or acquired in the Philippines by or on

behalf of the United States armed forces in connection with activities

to which this agreement applies, shall be free of all Philippine duties,

taxes and other similar charges. Title to such property shall remain

with the United States, which may remove such property from the

Philippines at any time, free from export duties, taxes, and other

similar charges. The exemptions provided in this paragraph shall also

extend to any duty, tax, or other similar charges which would

otherwise be assessed upon such property after importation into, or

acquisition within, the Philippines. Such property may be removed

from the Philippines, or disposed of therein, provided that disposition

of such property in the Philippines to persons or entities not entitled

to exemption from applicable taxes and duties shall be subject to

payment of such taxes, and duties and prior approval of the

Philippine Government.

―2. Reasonable quantities of personal baggage, personal effects, and

other property for the personal use of United States personnel may be

imported into and used in the Philippines free of all duties, taxes and

other similar charges during the period of their temporary stay in the

Philippines. Transfers to persons or entities in the Philippines not

36

entitled to import privileges may only be made upon prior approval

of the appropriate Philippine authorities including payment by the

recipient of applicable duties and taxes imposed in accordance with

the laws of the Philippines. The exportation of such property and of

property acquired in the Philippines by United States personnel shall

be free of all Philippine duties, taxes, and other similar charges.

―Article VIII

Movement of Vessels and Aircraft

―1. Aircraft operated by or for the United States armed forces

may enter the Philippines upon approval of the Government of the

Philippines in accordance with procedures stipulated in implementing

arrangements.

―2. Vessels operated by or for the United States armed forces may

enter the Philippines upon approval of the Government of the

Philippines. The movement of vessels shall be in accordance with

international custom and practice governing such vessels, and such

agreed implementing arrangements as necessary.

―3. Vehicles, vessels, and aircraft operated by or for the United States

armed forces shall not be subject to the payment of landing or port

fees, navigation or over flight charges, or tolls or other use charges,

including light and harbor dues, while in the Philippines. Aircraft

operated by or for the United States armed forces shall observe local

air traffic control regulations while in the Philippines. Vessels owned

or operated by the United States solely on United States Government

non-commercial service shall not be subject to compulsory pilotage

at Philippine ports.

―Article IX

Duration and Termination

―This agreement shall enter into force on the date on which the

parties have notified each other in writing through the

diplomatic channel that they have completed their

constitutional requirements for entry into force. This agreement

shall remain in force until the expiration of 180 days from the

date on which either party gives the other party notice in

writing that it desires to terminate the agreement.‖

Via these consolidatedxi[11] petitions for certiorari and prohibition,

petitioners - as legislators, non-governmental organizations, citizens

and taxpayers - assail the constitutionality of the VFA and impute to

herein respondents grave abuse of discretion in ratifying the

agreement.

We have simplified the issues raised by the petitioners into the

following:

I

Do petitioners have legal standing as concerned citizens,

taxpayers, or legislators to question the constitutionality of the

VFA?

II

Is the VFA governed by the provisions of Section 21, Article

VII or of Section 25, Article XVIII of the Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear

and try offenses committed by US military personnel?

b. Is the Supreme Court deprived of its jurisdiction over

offenses punishable by reclusion perpetua or higher?

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of

the Constitution?

b. the Prohibition against nuclear weapons under Article II,

Section 8?

c. Section 28 (4), Article VI of the Constitution granting the

exemption from taxes and duties for the equipment, materials

supplies and other properties imported into or acquired in the

Philippines by, or on behalf, of the US Armed Forces?

LOCUS STANDI

At the outset, respondents challenge petitioner‘s standing to sue, on

the ground that the latter have not shown any interest in the case, and

that petitioners failed to substantiate that they have sustained, or will

sustain direct injury as a result of the operation of the VFA.xii[12]

Petitioners, on the other hand, counter that the validity or invalidity

of the VFA is a matter of transcendental importance which justifies

their standing.xiii[13]

A party bringing a suit challenging the constitutionality of a law, act,

or statute must show ―not only that the law is invalid, but also that he

has sustained or in is in immediate, or imminent danger of sustaining

some direct injury as a result of its enforcement, and not merely that

he suffers thereby in some indefinite way.‖ He must show that he has

been, or is about to be, denied some right or privilege to which he is

lawfully entitled, or that he is about to be subjected to some burdens

or penalties by reason of the statute complained of.xiv[14]

In the case before us, petitioners failed to show, to the satisfaction of

this Court, that they have sustained, or are in danger of sustaining any

direct injury as a result of the enforcement of the VFA. As taxpayers,

petitioners have not established that the VFA involves the exercise by

Congress of its taxing or spending powers.xv[15] On this point, it

bears stressing that a taxpayer‘s suit refers to a case where the act

complained of directly involves the illegal disbursement of public

funds derived from taxation.xvi[16] Thus, in Bugnay Const. &

Development Corp. vs. Laronxvii[17], we held:

―x x x it is exigent that the taxpayer-plaintiff sufficiently show that he

would be benefited or injured by the judgment or entitled to the avails

of the suit as a real party in interest. Before he can invoke the power

of judicial review, he must specifically prove that he has sufficient

interest in preventing the illegal expenditure of money raised by

37

taxation and that he will sustain a direct injury as a result of the

enforcement of the questioned statute or contract. It is not sufficient

that he has merely a general interest common to all members of the

public.‖

Clearly, inasmuch as no public funds raised by taxation are involved

in this case, and in the absence of any allegation by petitioners that

public funds are being misspent or illegally expended, petitioners, as

taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and

Joker Arroyo, as petitioners-legislators, do not possess the requisite

locus standi to maintain the present suit. While this Court, in Phil.

Constitution Association vs. Hon. Salvador Enriquez,xviii[18]

sustained the legal standing of a member of the Senate and the House

of Representatives to question the validity of a presidential veto or a

condition imposed on an item in an appropriation bull, we cannot, at

this instance, similarly uphold petitioners‘ standing as members of

Congress, in the absence of a clear showing of any direct injury to

their person or to the institution to which they belong.

Beyond this, the allegations of impairment of legislative power, such

as the delegation of the power of Congress to grant tax exemptions,

are more apparent than real. While it may be true that petitioners

pointed to provisions of the VFA which allegedly impair their

legislative powers, petitioners failed however to sufficiently show

that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is

stripped of standing in these cases. As aptly observed by the Solicitor

General, the IBP lacks the legal capacity to bring this suit in the

absence of a board resolution from its Board of Governors

authorizing its National President to commence the present

action.xix[19]

Notwithstanding, in view of the paramount importance and the

constitutional significance of the issues raised in the petitions, this

Court, in the exercise of its sound discretion, brushes aside the

procedural barrier and takes cognizance of the petitions, as we have

done in the early Emergency Powers Cases,xx[20] where we had

occasion to rule:

―x x x ordinary citizens and taxpayers were allowed to question the

constitutionality of several executive orders issued by President

Quirino although they were involving only an indirect and general

interest shared in common with the public. The Court dismissed the

objection that they were not proper parties and ruled that

‗transcendental importance to the public of these cases demands

that they be settled promptly and definitely, brushing aside, if we

must, technicalities of procedure.‘ We have since then applied the

exception in many other cases. (Association of Small Landowners in

the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).‖

(Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs.

COMELEC,xxi[21] Daza vs. Singson,xxii[22] and Basco vs. Phil.

Amusement and Gaming Corporation,xxiii[23] where we

emphatically held:

―Considering however the importance to the public of the case at bar,

and in keeping with the Court‘s duty, under the 1987 Constitution, to

determine whether or not the other branches of the government have

kept themselves within the limits of the Constitution and the laws and

that they have not abused the discretion given to them, the Court has

brushed aside technicalities of procedure and has taken cognizance of

this petition. x x x‖

Again, in the more recent case of Kilosbayan vs. Guingona,

Jr.,xxiv[24] thisCourt ruled that in cases of transcendental

importance, the Court may relax the standing requirements and

allow a suit to prosper even where there is no direct injury to the

party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional

question based on the doctrine of separation of powers, which enjoins

upon the departments of the government a becoming respect for each

others‘ acts,xxv[25] this Court nevertheless resolves to take

cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of

which provision of the Constitution applies, with regard to the

exercise by the senate of its constitutional power to concur with the

VFA. Petitioners argue that Section 25, Article XVIII is applicable

considering that the VFA has for its subject the presence of foreign

military troops in the Philippines. Respondents, on the contrary,

maintain that Section 21, Article VII should apply inasmuch as the

VFA is not a basing arrangement but an agreement which involves

merely the temporary visits of United States personnel engaged in

joint military exercises.

The 1987 Philippine Constitution contains two provisions requiring

the concurrence of the Senate on treaties or international agreements.

Section 21, Article VII, which herein respondents invoke, reads:

―No treaty or international agreement shall be valid and effective

unless concurred in by at least two-thirds of all the Members of the

Senate.‖

Section 25, Article XVIII, provides:

―After the expiration in 1991 of the Agreement between the Republic

of 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.‖

Section 21, Article VII deals with treatise or international agreements

in general, in which case, the concurrence of at least two-thirds (2/3)

of all the Members of the Senate is required to make the subject

treaty, or international agreement, valid and binding on the part of the

Philippines. This provision lays down the general rule on treatise or

international agreements and applies to any form of treaty with a

wide variety of subject matter, such as, but not limited to, extradition

or tax treatise or those economic in nature. All treaties or

international agreements entered into by the Philippines, regardless of

subject matter, coverage, or particular designation or appellation,

requires the concurrence of the Senate to be valid and effective.

In contrast, Section 25, Article XVIII is a special provision that

applies to treaties which involve the presence of foreign military

bases, troops or facilities in the Philippines. Under this provision, the

concurrence of the Senate is only one of the requisites to render

compliance with the constitutional requirements and to consider the

38

agreement binding on the Philippines. Section 25, Article XVIII

further requires that ―foreign military bases, troops, or facilities‖ may

be allowed in the Philippines only by virtue of a treaty duly

concurred in by the Senate, ratified by a majority of the votes cast in

a national referendum held for that purpose if so required by

Congress, and recognized as such by the other contracting state.

It is our considered view that both constitutional provisions, far from

contradicting each other, actually share some common ground. These

constitutional provisions both embody phrases in the negative and

thus, are deemed prohibitory in mandate and character. In particular,

Section 21 opens with the clause ―No treaty x x x,‖ and Section 25

contains the phrase ―shall not be allowed.‖ Additionally, in both

instances, the concurrence of the Senate is indispensable to render the

treaty or international agreement valid and effective.

To our mind, the fact that the President referred the VFA to the

Senate under Section 21, Article VII, and that the Senate extended its

concurrence under the same provision, is immaterial. For in either

case, whether under Section 21, Article VII or Section 25, Article

XVIII, the fundamental law is crystalline that the concurrence of the

Senate is mandatory to comply with the strict constitutional

requirements.

On the whole, the VFA is an agreement which defines the treatment

of United States troops and personnel visiting the Philippines. It

provides for the guidelines to govern such visits of military

personnel, and further defines the rights of the United States and the

Philippine government in the matter of criminal jurisdiction,

movement of vessel and aircraft, importation and exportation of

equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals

with treaties involving foreign military bases, troops, or facilities,

should apply in the instant case. To a certain extent and in a limited

sense, however, the provisions of section 21, Article VII will find

applicability with regard to the issue and for the sole purpose of

determining the number of votes required to obtain the valid

concurrence of the Senate, as will be further discussed hereunder.

It is a finely-imbedded principle in statutory construction that a

special provision or law prevails over a general one. Lex specialis

derogat generali. Thus, where there is in the same statute a particular

enactment and also a general one which, in its most comprehensive

sense, would include what is embraced in the former, the particular

enactment must be operative, and the general enactment must be

taken to affect only such cases within its general language which are

not within the provision of the particular enactment.xxvi[26]

In Leveriza vs. Intermediate Appellate Court,xxvii[27] we

enunciated:

―x x x that another basic principle of statutory construction mandates

that general legislation must give way to a special legislation on the

same subject, and generally be so interpreted as to embrace only

cases in which the special provisions are not applicable (Sto.

Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute

prevails over a general statute (De Jesus vs. People, 120 SCRA 760)

and that where two statutes are of equal theoretical application to a

particular case, the one designed therefor specially should prevail

(Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).‖

Moreover, it is specious to argue that Section 25, Article XVIII is

inapplicable to mere transient agreements for the reason that there is

no permanent placing of structure for the establishment of a military

base. On this score, the Constitution makes no distinction between

―transient‘ and ―permanent‖. Certainly, we find nothing in Section

25, Article XVIII that requires foreign troops or facilities to be

stationed or placed permanently in the Philippines.

It is a rudiment in legal hermenuetics that when no distinction is

made by law, the Court should not distinguish- Ubi lex non

distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25,

Article XVIII is not controlling since no foreign military bases, but

merely foreign troops and facilities, are involved in the VFA.

Notably, a perusal of said constitutional provision reveals that the

proscription covers ―foreign military bases, troops, or facilities.‖

Stated differently, this prohibition is not limited to the entry of troops

and facilities without any foreign bases being established. The clause

does not refer to ―foreign military bases, troops, or facilities‖

collectively but treats them as separate and independent subjects. The

use of comma and the disjunctive word ―or‖ clearly signifies

disassociation and independence of one thing from the others

included in the enumeration,xxviii[28] such that, the provision

contemplates three different situations - a military treaty the subject

of which could be either (a) foreign bases, (b) foreign troops, or (c)

foreign facilities - any of the three standing alone places it under the

coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested

during the deliberations of the 1986 Constitutional Commission, is

consistent with this interpretation:

―MR. MAAMBONG. I just want to address a question or two to

Commissioner Bernas.

This formulation speaks of three things: foreign military bases, troops

or facilities. My first question is: If the country does enter into such

kind of a treaty, must it cover the three-bases, troops or facilities-

or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers

only one or it covers three, the requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government

can enter into a treaty covering not bases but merely troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why the government

can enter into a treaty covering only troops.

FR. BERNAS. Why not? Probably if we stretch our imagination a

little bit more, we will find some. We just want to cover

everything.‖xxix[29] (Underscoring Supplied)

Moreover, military bases established within the territory of another

state is no longer viable because of the alternatives offered by new

means and weapons of warfare such as nuclear weapons, guided

missiles as well as huge sea vessels that can stay afloat in the sea

even for months and years without returning to their home country.

These military warships are actually used as substitutes for a land-

home base not only of military aircraft but also of military personnel

and facilities. Besides, vessels are mobile as compared to a land-

based military headquarters.

39

At this juncture, we shall then resolve the issue of whether or not the

requirements of Section 25 were complied with when the Senate gave

its concurrence to the VFA.

Section 25, Article XVIII disallows foreign military bases, troops, or

facilities in the country, unless the following conditions are

sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must

be duly concurred in by the Senate and, when so required by

congress, ratified by a majority of the votes cast by the people in a

national referendum; and (c) recognized as a treaty by the other

contracting state.

There is no dispute as to the presence of the first two requisites in the

case of the VFA. The concurrence handed by the Senate through

Resolution No. 18 is in accordance with the provisions of the

Constitution, whether under the general requirement in Section 21,

Article VII, or the specific mandate mentioned in Section 25, Article

XVIII, the provision in the latter article requiring ratification by a

majority of the votes cast in a national referendum being unnecessary

since Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly

requires that a treaty or international agreement, to be valid and

effective, must be concurred in by at least two-thirds of all the

members of the Senate. On the other hand, Section 25, Article

XVIII simply provides that the treaty be “duly concurred in by the

Senate.”

Applying the foregoing constitutional provisions, a two-thirds vote of

all the members of the Senate is clearly required so that the

concurrence contemplated by law may be validly obtained and

deemed present. While it is true that Section 25, Article XVIII

requires, among other things, that the treaty-the VFA, in the instant

case-be ―duly concurred in by the Senate,‖ it is very true however

that said provision must be related and viewed in light of the clear

mandate embodied in Section 21, Article VII, which in more specific

terms, requires that the concurrence of a treaty, or international

agreement, be made by a two -thirds vote of all the members of the

Senate. Indeed, Section 25, Article XVIII must not be treated in

isolation to section 21, Article, VII.

As noted, the ―concurrence requirement‖ under Section 25, Article

XVIII must be construed in relation to the provisions of Section 21,

Article VII. In a more particular language, the concurrence of the

Senate contemplated under Section 25, Article XVIII means that at

least two-thirds of all the members of the Senate favorably vote to

concur with the treaty-the VFA in the instant case.

Under these circumstances, the charter provides that the Senate shall

be composed of twenty-four (24) Senators.xxx[30] Without a tinge of

doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)

members, favorably acting on the proposal is an unquestionable

compliance with the requisite number of votes mentioned in Section

21 of Article VII. The fact that there were actually twenty-three (23)

incumbent Senators at the time the voting was made,xxxi[31] will not

alter in any significant way the circumstance that more than two-

thirds of the members of the Senate concurred with the proposed

VFA, even if the two-thirds vote requirement is based on this figure

of actual members (23). In this regard, the fundamental law is clear

that two-thirds of the 24 Senators, or at least 16 favorable votes,

suffice so as to render compliance with the strict constitutional

mandate of giving concurrence to the subject treaty.

Having resolved that the first two requisites prescribed in Section 25,

Article XVIII are present, we shall now pass upon and delve on the

requirement that the VFA should be recognized as a treaty by the

United States of America.

Petitioners content that the phrase ―recognized as a treaty,‖ embodied

in section 25, Article XVIII, means that the VFA should have the

advice and consent of the United States Senate pursuant to its own

constitutional process, and that it should not be considered merely an

executive agreement by the United States.

In opposition, respondents argue that the letter of United States

Ambassador Hubbard stating that the VFA is binding on the United

States Government is conclusive, on the point that the VFA is

recognized as a treaty by the United States of America. According to

respondents, the VFA, to be binding, must only be accepted as a

treaty by the United States.

This Court is of the firm view that the phrase “recognized as a

treaty” means that the other contracting party accepts or

acknowledges the agreement as a treaty.xxxii[32] To require the

other contracting state, the United States of America in this case, to

submit the VFA to the United States Senate for concurrence pursuant

to its Constitution,xxxiii[33] is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the

Constitution are to be given their ordinary meaning except where

technical terms are employed, in which case the significance thus

attached to them prevails. Its language should be understood in the

sense they have in common use.xxxiv[34]

Moreover, it is inconsequential whether the United States treats the

VFA only as an executive agreement because, under international

law, an executive agreement is as binding as a treaty.xxxv[35] To be

sure, as long as the VFA possesses the elements of an agreement

under international law, the said agreement is to be taken equally as a

treaty.

A treaty, as defined by the Vienna Convention on the Law of

Treaties, is ―an international instrument concluded between States in

written form and governed by international law, whether embodied in

a single instrument or in two or more related instruments, and

whatever its particular designation.‖xxxvi[36] There are many other

terms used for a treaty or international agreement, some of which are:

act, protocol, agreement, compromis d‟ arbitrage, concordat,

convention, declaration, exchange of notes, pact, statute, charter and

modus vivendi. All writers, from Hugo Grotius onward, have pointed

out that the names or titles of international agreements included under

the general term treaty have little or no legal significance. Certain

terms are useful, but they furnish little more than mere

description.xxxvii[37]

Article 2(2) of the Vienna Convention provides that ―the provisions

of paragraph 1 regarding the use of terms in the present Convention

are without prejudice to the use of those terms, or to the meanings

which may be given to them in the internal law of the State.‖

Thus, in international law, there is no difference between treaties and

executive agreements in their binding effect upon states concerned, as

long as the negotiating functionaries have remained within their

powers.xxxviii[38] International law continues to make no distinction

between treaties and executive agreements: they are equally binding

obligations upon nations.xxxix[39]

40

In our jurisdiction, we have recognized the binding effect of

executive agreements even without the concurrence of the Senate or

Congress. In Commissioner of Customs vs. Eastern Sea

Trading,xl[40] we had occasion to pronounce:

―x x x the right of the Executive to enter into binding agreements

without the necessity of subsequent congressional approval has been

confirmed by long usage. From the earliest days of our history we

have entered into executive agreements covering such subjects as

commercial and consular relations, most-favored-nation rights, patent

rights, trademark and copyright protection, postal and navigation

arrangements and the settlement of claims. The validity of these has

never been seriously questioned by our courts.

―x x x x x x x x x

―Furthermore, the United States Supreme Court has expressly

recognized the validity and constitutionality of executive agreements

entered into without Senate approval. (39 Columbia Law Review,

pp. 753-754) (See, also, U.S. vs. Curtis Wright Export

Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301

U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796;

Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp.

1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on

International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418;

willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-

540; Moore, International Law Digest, Vol. V, pp. 210-218;

Hackworth, International Law Digest, Vol. V, pp. 390-407).

(Italics Supplied)” (Emphasis Ours)

The deliberations of the Constitutional Commission which drafted the

1987 Constitution is enlightening and highly-instructive:

―MR. MAAMBONG. Of course it goes without saying that as far as

ratification of the other state is concerned, that is entirely their

concern under their own laws.

FR. BERNAS. Yes, but we will accept whatever they say. If they say

that we have done everything to make it a treaty, then as far as we are

concerned, we will accept it as a treaty.‖xli[41]

The records reveal that the United States Government, through

Ambassador Thomas C. Hubbard, has stated that the United States

government has fully committed to living up to the terms of the

VFA.xlii[42] For as long as the united States of America accepts or

acknowledges the VFA as a treaty, and binds itself further to comply

with its obligations under the treaty, there is indeed marked

compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the

VFA and the concurrence of the Senate should be taken as a clear an

unequivocal expression of our nation‘s consent to be bound by said

treaty, with the concomitant duty to uphold the obligations and

responsibilities embodied thereunder.

Ratification is generally held to be an executive act, undertaken by

the head of the state or of the government, as the case may be,

through which the formal acceptance of the treaty is

proclaimed.xliii[43] A State may provide in its domestic legislation

the process of ratification of a treaty. The consent of the State to be

bound by a treaty is expressed by ratification when: (a) the treaty

provides for such ratification, (b) it is otherwise established that the

negotiating States agreed that ratification should be required, (c) the

representative of the State has signed the treaty subject to ratification,

or (d) the intention of the State to sign the treaty subject to

ratification appears from the full powers of its representative, or was

expressed during the negotiation.xliv[44]

In our jurisdiction, the power to ratify is vested in the President and

not, as commonly believed, in the legislature. The role of the Senate

is limited only to giving or withholding its consent, or concurrence,

to the ratification.xlv[45]

With the ratification of the VFA, which is equivalent to final

acceptance, and with the exchange of notes between the Philippines

and the United States of America, it now becomes obligatory and

incumbent on our part, under the principles of international law, to be

bound by the terms of the agreement. Thus, no less than Section 2,

Article II of the Constitution,xlvi[46] declares that the Philippines

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 with all nations.

As a member of the family of nations, the Philippines agrees to be

bound by generally accepted rules for the conduct of its international

relations. While the international obligation devolves upon the state

and not upon any particular branch, institution, or individual member

of its government, the Philippines is nonetheless responsible for

violations committed by any branch or subdivision of its government

or any official thereof. As an integral part of the community of

nations, we are responsible to assure that our government,

Constitution and laws will carry out our international

obligation.xlvii[47] Hence, we cannot readily plead the Constitution

as a convenient excuse for non-compliance with our obligations,

duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of

States adopted by the International Law Commission in 1949

provides: “Every State has the duty to carry out in good faith its

obligations arising from treaties and other sources of international

law, and it may not invoke provisions in its constitution or its laws as

an excuse for failure to perform this duty.”xlviii[48]

Equally important is Article 26 of the convention which provides that

―Every treaty in force is binding upon the parties to it and must be

performed by them in good faith.‖ This is known as the principle of

pacta sunt servanda which preserves the sanctity of treaties and have

been one of the most fundamental principles of positive international

law, supported by the jurisprudence of international tribunals.xlix[49]

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted

for exercising a power and performing a task conferred upon him by

the Constitution-the power to enter into and ratify treaties. Through

the expediency of Rule 65 of the Rules of Court, petitioners in these

consolidated cases impute grave abuse of discretion on the part of

the chief Executive in ratifying the VFA, and referring the same to

the Senate pursuant to the provisions of Section 21, Article VII of the

Constitution.

On this particular matter, grave abuse of discretion implies such

capricious and whimsical exercise of judgment as is equivalent to

lack of jurisdiction, or, when the power is exercised in an arbitrary or

despotic manner by reason of passion or personal hostility, and it

must be so patent and gross as to amount to an evasion of positive

duty enjoined or to act at all in contemplation of law.l[50]

41

By constitutional fiat and by the intrinsic nature of his office, the

President, as head of State, is the sole organ and authority in the

external affairs of the country. In many ways, the President is the

chief architect of the nation‘s foreign policy; his ―dominance in the

field of foreign relations is (then) conceded.‖li[51] Wielding vast

powers an influence, his conduct in the external affairs of the nation,

as Jefferson describes, is ―executive altogether."lii[52]

As regards the power to enter into treaties or international

agreements, the Constitution vests the same in the President, subject

only to the concurrence of at least two-thirds vote of all the members

of the Senate. In this light, the negotiation of the VFA and the

subsequent ratification of the agreement are exclusive acts which

pertain solely to the President, in the lawful exercise of his vast

executive and diplomatic powers granted him no less than by the

fundamental law itself. Into the field of negotiation the Senate cannot

intrude, and Congress itself is powerless to invade it.liii[53]

Consequently, the acts or judgment calls of the President involving

the VFA-specifically the acts of ratification and entering into a treaty

and those necessary or incidental to the exercise of such principal

acts - squarely fall within the sphere of his constitutional powers and

thus, may not be validly struck down, much less calibrated by this

Court, in the absence of clear showing of grave abuse of power or

discretion.

It is the Court‘s considered view that the President, in ratifying the

VFA and in submitting the same to the Senate for concurrence, acted

within the confines and limits of the powers vested in him by the

Constitution. It is of no moment that the President, in the exercise of

his wide latitude of discretion and in the honest belief that the VFA

falls within the ambit of Section 21, Article VII of the Constitution,

referred the VFA to the Senate for concurrence under the

aforementioned provision. Certainly, no abuse of discretion, much

less a grave, patent and whimsical abuse of judgment, may be

imputed to the President in his act of ratifying the VFA and referring

the same to the Senate for the purpose of complying with the

concurrence requirement embodied in the fundamental law. In doing

so, the President merely performed a constitutional task and exercised

a prerogative that chiefly pertains to the functions of his office. Even

if he erred in submitting the VFA to the Senate for concurrence under

the provisions of Section 21 of Article VII, instead of Section 25 of

Article XVIII of the Constitution, still, the President may not be

faulted or scarred, much less be adjudged guilty of committing an

abuse of discretion in some patent, gross, and capricious manner.

For while it is conceded that Article VIII, Section 1, of the

Constitution has broadened the scope of judicial inquiry into areas

normally left to the political departments to decide, such as those

relating to national security, it has not altogether done away with

political questions such as those which arise in the field of foreign

relations.liv[54] The High Tribunal‘s function, as sanctioned by

Article VIII, Section 1, “is merely (to) check whether or not the

governmental branch or agency has gone beyond the constitutional

limits of its jurisdiction, not that it erred or has a different view. In

the absence of a showing… (of) grave abuse of discretion amounting

to lack of jurisdiction, there is no occasion for the Court to exercise

its corrective power…It has no power to look into what it thinks is

apparent error.”lv[55]

As to the power to concur with treaties, the constitution lodges the

same with the Senate alone. Thus, once the Senatelvi[56] performs

that power, or exercises its prerogative within the boundaries

prescribed by the Constitution, the concurrence cannot, in like

manner, be viewed to constitute an abuse of power, much less grave

abuse thereof. Corollarily, the Senate, in the exercise of its discretion

and acting within the limits of such power, may not be similarly

faulted for having simply performed a task conferred and sanctioned

by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially

legislative in character;lvii[57] the Senate, as an independent body

possessed of its own erudite mind, has the prerogative to either accept

or reject the proposed agreement, and whatever action it takes in the

exercise of its wide latitude of discretion, pertains to the wisdom

rather than the legality of the act. In this sense, the Senate partakes a

principal, yet delicate, role in keeping the principles of separation of

powers and of checks and balances alive and vigilantly ensures that

these cherished rudiments remain true to their form in a democratic

government such as ours. The Constitution thus animates, through

this treaty-concurring power of the Senate, a healthy system of

checks and balances indispensable toward our nation‘s pursuit of

political maturity and growth. True enough, rudimentary is the

principle that matters pertaining to the wisdom of a legislative act are

beyond the ambit and province of the courts to inquire.

In fine, absent any clear showing of grave abuse of discretion on the

part of respondents, this Court- as the final arbiter of legal

controversies and staunch sentinel of the rights of the people - is then

without power to conduct an incursion and meddle with such affairs

purely executive and legislative in character and nature. For the

Constitution no less, maps out the distinct boundaries and limits the

metes and bounds within which each of the three political branches of

government may exercise the powers exclusively and essentially

conferred to it by law.

WHEREFORE, in light of the foregoing disquisitions, the instant

petitions are hereby DISMISSED.

SO ORDERED.

Bayani v. Zamora digest

Case Digest: G.R. No. 138570. October 10, 2000. 342 SCRA 449

BAYAN (Bagong Alyansang Makabayan), a Junk VFA Movement,

Bishop Tomas Millamena (Iglesia Filipina Independiente), Bishop

Elmer Bolocan (United Church of Christ of the Phil.), Dr. Reynaldo

Legasca, Md, Kilusang Mambubukid Ng Pilipinas, Kilusang Mayo

Uno, Gabriela, Prolabor, and The Public Interest Law Center,

petitioners, vs. Executive Secretary Ronaldo Zamora, Foreign Affairs

Secretary Domingo Siazon, Defense Secretary Orlando Mercado,

Brig. Gen. Alexander Aguirre, Senate President Marcelo Fernan,

Senator Franklin Drilon, Senator Blas Ople, Senator Rodolfo Biazon,

And Senator Francisco Tatad, respondents.

Facts: On March 14, 1947, the Philippines and the United States of

America forged a Military Bases Agreement which formalized,

among others, the use of installations in the Philippine territory by

United States military personnel. In view of the impending expiration

of the RP-US Military Bases Agreement in 1991, the Philippines and

the United States negotiated for a possible extension of the military

bases agreement. On September 16, 1991, the Philippine Senate

rejected the proposed RP-US Treaty of Friendship, Cooperation and

Security which, in effect, would have extended the presence of US

military bases in the Philippines. On July 18, 1997, the United States

panel, headed by US Defense Deputy Assistant Secretary for Asia

42

Pacific Kurt Campbell, met with the Philippine panel, headed by

Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange

notes on ―the complementing strategic interests of the United States

and the Philippines in the Asia-Pacific region.‖ Both sides discussed,

among other things, the possible elements of the Visiting Forces

Agreement (VFA for brevity). Thereafter, then President Fidel V.

Ramos approved the VFA, which was respectively signed by public

respondent Secretary Siazon and Unites States Ambassador Thomas

Hubbard. On October 5, 1998, President Joseph E. Estrada, through

respondent Secretary of Foreign Affairs, ratified the VFA. On

October 6, 1998, the President, acting through respondent Executive

Secretary Ronaldo Zamora, officially transmitted to the Senate of the

Philippines, the Instrument of Ratification, the letter of the President

and the VFA, for concurrence pursuant to Section 21, Article VII of

the 1987 Constitution

Issues (justiciable controversy): (1) Whether or not petitioners have

legal standing as concerned citizens, taxpayers, or legislators to

question the constitutionality of the VFA; (2) whether the VFA is

governed by the provisions of Section 21, Article VII or of Section

25, Article XVIII of the Constitution; (3) and whether or not the

Supreme Court has jurisdiction.

Ruling: (1) No. Petitioners failed to show that they have sustained, or

are in danger of sustaining any direct injury as a result of the

enforcement of the VFA. As taxpayers, petitioners have not

established that the VFA involves the exercise by Congress of its

taxing or spending powers. On this point, it bears stressing that a

taxpayer‘s suit refers to a case where the act complained of directly

involves the illegal disbursement of public funds derived from

taxation.

(2) Yes.The fact that the President referred the VFA to the Senate

under Section 21, Article VII, and that the Senate extended its

concurrence under the same provision, is immaterial. For in either

case, whether under Section 21, Article VII or Section 25, Article

XVIII, the fundamental law is crystalline that the concurrence of the

Senate is mandatory to comply with the strict constitutional

requirements.

(3) No. In fine, absent any clear showing of grave abuse of discretion

on the part of respondents, the Court as the final arbiter of legal

controversies and staunch sentinel of the rights of the people is then

without power to conduct an incursion and meddle with such affairs

purely executive and legislative in character and nature. For the

Constitution no less, maps out the distinct boundaries and limits the

metes and bounds within which each of the three political branches of

government may exercise the powers exclusively and essentially

conferred to it by law.

Estrada v. dessierto digest

353 SCRA 452 – Political Law – Constitutional Law – De Jure vs De

Facto President – Arroyo a de jure president

Joseph ―Erap‖ Estrada alleges that he is the President on leave while

Gloria Macapagal-Arroyo claims she is the President. From the

beginning of Erap‘s term, he was plagued by problems that slowly

but surely eroded his popularity. His sharp descent from power

started on October 4, 2000. Singson, a longtime friend of Estrada,

went on air and accused the Estrada, his family and friends of

receiving millions of pesos from jueteng lords. The exposé

immediately ignited reactions of rage. On January 19, Estrada fell

from power. At 1:20 p.m. of said day, the Erap informed then

Executive Secretary Edgardo Angara that General Angelo Reyes,

Chief of Staff of the Armed Forces of the Philippines, had defected.

January 20 turned to be the day of Erap‘s surrender. On January 22,

the Monday after taking her oath, Arroyo immediately discharged the

powers and duties of the Presidency. After his fall from the pedestal

of power, Erap‘s legal problems appeared in clusters. Several cases

previously filed against him in the Office of the Ombudsman were set

in motion.

ISSUE: Whether or not Arroyo is a legitimate (de jure) president.

HELD: The SC holds that the resignation of Estrada cannot be

doubted. It was confirmed by his leaving Malacañang. In the press

release containing his final statement, (1) he acknowledged the oath-

taking of the respondent as President of the Republic albeit with the

reservation about its legality; (2) he emphasized he was leaving the

Palace, the seat of the presidency, for the sake of peace and in order

to begin the healing process of our nation. He did not say he was

leaving the Palace due to any kind of inability and that he was going

to re-assume the presidency as soon as the disability disappears; (3)

he expressed his gratitude to the people for the opportunity to serve

them. Without doubt, he was referring to the past opportunity given

him to serve the people as President; (4) he assured that he will not

shirk from any future challenge that may come ahead in the same

service of our country. Estrada‘s reference is to a future challenge

after occupying the office of the president which he has given up; and

(5) he called on his supporters to join him in the promotion of a

constructive national spirit of reconciliation and solidarity. Certainly,

the national spirit of reconciliation and solidarity could not be

attained if he did not give up the presidency. The press release was

petitioner‘s valedictory, his final act of farewell. His presidency is

now in the past tense. Even if Erap can prove that he did not resign,

still, he cannot successfully claim that he is a President on leave on

the ground that he is merely unable to govern temporarily. That

claim has been laid to rest by Congress and the decision that

respondent Arroyo is the de jure President made by a co-equal branch

of government cannot be reviewed by this Court.

Phil judges assoc v prado

Republic of the Philippines

SUPREME COURT Manila

EN BANC

G.R. No. 105371 November 11, 1993

THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its

President, BERNARDO P. ABESAMIS, Vice-President for Legal

Affairs, MARIANO M. UMALI, Director for Pasig, Makati, and

Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of

the Committee on Legal Aid, JESUS G. BERSAMIRA, Presiding

Judges of the Regional Trial Court, Branch 85, Quezon City and

Branches 160, 167 and 166, Pasig, Metro Manila, respectively:

43

the NATIONAL CONFEDERATION OF THE JUDGES

ASSOCIATION OF THE PHILIPPINES, composed of the

METROPOLITAN TRIAL COURT JUDGES ASSOCIATION

rep. by its President. REINATO QUILALA of the MUNICIPAL

TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL

JUDGES LEAGUE OF THE PHILIPPINES rep. by its

President, TOMAS G. TALAVERA; by themselves and in behalf

of all the Judges of the Regional Trial and Shari’a Courts,

Metropolitan Trial Courts and Municipal Courts throughout the

Country, petitioners,

vs.

HON. PETE PRADO, in his capacity as Secretary of the

Department of Transportation and Communications, JORGE V.

SARMIENTO, in his capacity as Postmaster General, and the

PHILIPPINE POSTAL CORP., respondents.

CRUZ, J.:

The basic issue raised in this petition is the independence of the

Judiciary. It is asserted by the petitioners that this hallmark of

republicanism is impaired by the statute and circular they are here

challenging. The Supreme Court is itself affected by these measures

and is thus an interested party that should ordinarily not also be a

judge at the same time. Under our system of government, however, it

cannot inhibit itself and must rule upon the challenge, because no

other office has the authority to do so. We shall therefore act upon

this matter not with officiousness but in the discharge of an

unavoidable duty and, as always, with detachment and fairness.

The main target of this petition is Section 35 of R.A. No. 7354 as

implemented by the Philippine Postal Corporation through its

Circular No. 92-28. These measures withdraw the franking privilege

from the Supreme Court, the Court of Appeals, the Regional Trial

Courts, the Metropolitan Trial Courts, the Municipal Trial Courts,

and the Land Registration Commission and its Registers of Deeds,

along with certain other government offices.

The petitioners are members of the lower courts who feel that their

official functions as judges will be prejudiced by the above-named

measures. The National Land Registration Authority has taken

common cause with them insofar as its own activities, such as

sending of requisite notices in registration cases, affect judicial

proceedings. On its motion, it has been allowed to intervene.

The petition assails the constitutionality of R.A. No. 7354 on the

grounds that: (1) its title embraces more than one subject and does

not express its purposes; (2) it did not pass the required readings in

both Houses of Congress and printed copies of the bill in its final

form were not distributed among the members before its passage; and

(3) it is discriminatory and encroaches on the independence of the

Judiciary.

We approach these issues with one important principle in mind, to

wit, the presumption of the constitutionality of statutes. The theory is

that as the joint act of the Legislature and the Executive, every statute

is supposed to have first been carefully studied and determined to be

constitutional before it was finally enacted. Hence, unless it is clearly

shown that it is constitutionally flawed, the attack against its validity

must be rejected and the law itself upheld. To doubt is to sustain.

I

We consider first the objection based on Article VI, Sec. 26(l), of the

Constitution providing that ―Every bill passed by the Congress shall

embrace only one subject which shall be expressed in the title

thereof.‖

The purposes of this rule are: (1) to prevent hodge-podge or ―log-

rolling‖ legislation; (2) to prevent surprise or fraud upon the

legislature by means of provisions in bills of which the title gives no

intimation, and which might therefore be overlooked and carelessly

and unintentionally adopted; and (3) to fairly apprise the people,

through such publication of legislative proceedings as is usually

made, of the subject of legislation that is being considered, in order

that they may have opportunity of being heard thereon, by petition or

otherwise, if they shall so desire. 1

It is the submission of the petitioners that Section 35 of R.A. No.

7354 which withdrew the franking privilege from the Judiciary is not

expressed in the title of the law, nor does it reflect its purposes.

R.A. No. 7354 is entitled ―An Act Creating the Philippine Postal

Corporation, Defining its Powers, Functions and Responsibilities,

Providing for Regulation of the Industry and for Other Purposes

Connected Therewith.‖

The objectives of the law are enumerated in Section 3, which

provides:

The State shall pursue the following objectives of a nationwide postal

system:

a) to enable the economical and speedy transfer of mail and other

postal matters, from sender to addressee, with full recognition of their

privacy or confidentiality;

b) to promote international interchange, cooperation and

understanding through the unhampered flow or exchange of postal

matters between nations;

c) to cause or effect a wide range of postal services to cater to

different users and changing needs, including but not limited to,

philately, transfer of monies and valuables, and the like;

d) to ensure that sufficient revenues are generated by and within the

industry to finance the overall cost of providing the varied range of

postal delivery and messengerial services as well as the expansion

and continuous upgrading of service standards by the same.

Sec. 35 of R.A. No. 7354, which is the principal target of the petition,

reads as follows:

Sec. 35. Repealing Clause. — All acts, decrees, orders, executive

orders, instructions, rules and regulations or parts thereof inconsistent

with the provisions of this Act are repealed or modified accordingly.

All franking privileges authorized by law are hereby repealed, except

those provided for under Commonwealth Act No. 265, Republic Acts

Numbered 69, 180, 1414, 2087 and 5059. The Corporation may

continue the franking privilege under Circular No. 35 dated October

24, 1977 and that of the Vice President, under such arrangements and

conditions as may obviate abuse or unauthorized use thereof.

The petitioners‘ contention is untenable. We do not agree that the title

of the challenged act violates the Constitution.

44

The title of the bill is not required to be an index to the body of the

act, or to be as comprehensive as to cover every single detail of the

measure. It has been held that if the title fairly indicates the general

subject, and reasonably covers all the provisions of the act, and is not

calculated to mislead the legislature or the people, there is sufficient

compliance with the constitutional requirement. 2

To require every end and means necessary for the accomplishment of

the general objectives of the statute to be expressed in its title would

not only be unreasonable but would actually render legislation

impossible. 3As has been correctly explained:

The details of a legislative act need not be specifically stated in its

title, but matter germane to the subject as expressed in the title, and

adopted to the accomplishment of the object in view, may properly be

included in the act. Thus, it is proper to create in the same act the

machinery by which the act is to be enforced, to prescribe the

penalties for its infraction, and to remove obstacles in the way of its

execution. If such matters are properly connected with the subject as

expressed in the title, it is unnecessary that they should also have

special mention in the title (Southern Pac. Co. v. Bartine, 170 Fed.

725).

This is particularly true of the repealing clause, on which Cooley

writes: ―The repeal of a statute on a given subject is properly

connected with the subject matter of a new statute on the same

subject; and therefore a repealing section in the new statute is valid,

notwithstanding that the title is silent on the subject. It would be

difficult to conceive of a matter more germane to an act and to the

object to be accomplished thereby than the repeal of previous

legislations connected therewith.‖ 4

The reason is that where a statute repeals a former law, such repeal is

the effect and not the subject of the statute; and it is the subject, not

the effect of a law, which is required to be briefly expressed in its

title. 5As observed in one case, 6if the title of an act embraces only

one subject, we apprehend it was never claimed that every other act

which repeals it or alters by implication must be mentioned in the

title of the new act. Any such rule would be neither within the reason

of the Constitution, nor practicable.

We are convinced that the withdrawal of the franking privilege from

some agencies is germane to the accomplishment of the principal

objective of R.A. No. 7354, which is the creation of a more efficient

and effective postal service system. Our ruling is that, by virtue of its

nature as a repealing clause, Section 35 did not have to be expressly

included in the title of the said law.

II

The petitioners maintain that the second paragraph of Sec. 35

covering the repeal of the franking privilege from the petitioners and

this Court under E.O. 207, PD 1882 and PD 26 was not included in

the original version of Senate Bill No. 720 or House Bill No. 4200.

As this paragraph appeared only in the Conference Committee

Report, its addition, violates Article VI, Sec. 26(2) of the

Constitution, reading as follows:

(2) No bill passed by either House shall become a law unless it has

passed three readings on separate days, and printed copies thereof in

its final form have been distributed to its Members three days before

its passage, except when the President certifies to the necessity of its

immediate enactment to meet a public calamity or emergency. Upon

the last reading of a 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.

The petitioners also invoke Sec. 74 of the Rules of the House of

Representatives, requiring that amendment to any bill when the

House and the Senate shall have differences thereon may be settled

by a conference committee of both chambers. They stress that Sec. 35

was never a subject of any disagreement between both Houses and so

the second paragraph could not have been validly added as an

amendment.

These argument are unacceptable.

While it is true that a conference committee is the mechanism for

compromising differences between the Senate and the House, it is not

limited in its jurisdiction to this question. Its broader function is

described thus:

A conference committee may, deal generally with the subject matter

or it may be limited to resolving the precise differences between the

two houses. Even where the conference committee is not by rule

limited in its jurisdiction, legislative custom severely limits the

freedom with which new subject matter can be inserted into the

conference bill. But occasionally a conference committee produces

unexpected results, results beyond its mandate, These excursions

occur even where the rules impose strict limitations on conference

committee jurisdiction. This is symptomatic of the authoritarian

power of conference committee (Davies, Legislative Law and

Process: In a Nutshell, 1986 Ed., p.81).

It is a matter of record that the conference Committee Report on the

bill in question was returned to and duly approved by both the Senate

and the House of Representatives. Thereafter, the bill was enrolled

with its certification by Senate President Neptali A. Gonzales and

Speaker Ramon V. Mitra of the House of Representatives as having

been duly passed by both Houses of Congress. It was then presented

to and approved by President Corazon C. Aquino on April 3, 1992.

Under the doctrine of separation powers, the Court may not inquire

beyond the certification of the approval of a bill from the presiding

officers of Congress. Casco Philippine Chemical Co. v.

Gimenez 7 laid down the rule that the enrolled bill, is conclusive upon

the Judiciary (except in matters that have to be entered in the journals

like the yeas and nays on the final reading of the bill). 8The journals

are themselves also binding on the Supreme Court, as we held in the

old (but still valid) case of U.S. vs. Pons, 9where we explained the

reason thus:

To inquire into the veracity of the journals of the Philippine

legislature when they are, as we have said, clear and explicit, would

be to violate both the, letter and spirit of the organic laws by which

the Philippine Government was brought into existence, to invade a

coordinate and independent department of the Government, and to

interfere with the legitimate powers and functions, of the Legislature.

Applying these principles, we shall decline to look into the

petitioners‘ charges that an amendment was made upon the last

reading of the bill that eventually became R.A. No. 7354 and that

copies thereof in its final form were not distributed among the

members of each House. Both the enrolled bill and the legislative

journals certify that the measure was duly enacted i.e., in accordance

with Article VI, Sec. 26(2) of the Constitution. We are bound by such

official assurances from a coordinate department of the government,

to which we owe, at the very least, a becoming courtesy.

45

III

The third and most serious challenge of the petitioners is based on the

equal protection clause.

It is alleged that R.A. No. 7354 is discriminatory because while

withdrawing the franking privilege from the Judiciary, it retains the

same for the President of the Philippines, the Vice President of the

Philippines; Senators and Members of the House of Representatives,

the Commission on Elections; former Presidents of the Philippines;

the National Census and Statistics Office; and the general public in

the filing of complaints against public offices and officers. 10

The respondents counter that there is no discrimination because the

law is based on a valid classification in accordance with the equal

protection clause. In fact, the franking privilege has been withdrawn

not only from the Judiciary but also the Office of Adult Education,

the Institute of National Language; the Telecommunications Office;

the Philippine Deposit Insurance Corporation; the National Historical

Commission; the Armed Forces of the Philippines; the Armed Forces

of the Philippines Ladies Steering Committee; the City and

Provincial Prosecutors; the Tanodbayan (Office of Special

Prosecutor); the Kabataang Barangay; the Commission on the

Filipino Language; the Provincial and City Assessors; and the

National Council for the Welfare of Disabled Persons. 11

The equal protection of the laws is embraced in the concept of due

process, as every unfair discrimination offends the requirements of

justice and fair play. It has nonetheless been embodied in a separate

clause in Article III Sec. 1., of the Constitution to provide for a more,

specific guaranty against any form of undue favoritism or hostility

from the government. Arbitrariness in general may be challenged on

the basis of the due process clause. But if the particular act assailed

partakes of an unwarranted partiality or prejudice, the sharper

weapon to cut it down is the equal protection clause.

According to a long line of decisions, equal protection simply

requires that all persons or things similarly situated should be treated

alike, both as to rights conferred and responsibilities

imposed, 12Similar subjects, in other words, should not be treated

differently, so as to give undue favor to some and unjustly

discriminate against others.

The equal protection clause does not require the universal application

of the laws on all persons or things without distinction. This might in

fact sometimes result in unequal protection, as where, for example, a

law prohibiting mature books to all persons, regardless of age, would

benefit the morals of the youth but violate the liberty of adults. What

the clause requires is equality among equals as determined according

to a valid classification. By classification is meant the grouping of

persons or things similar to each other in certain particulars and

different from all others in these same particulars. 13

What is the reason for the grant of the franking privilege in the first

place? Is the franking privilege extended to the President of the

Philippines or the Commission on Elections or to former Presidents

of the Philippines purely as a courtesy from the lawmaking body? Is

it offered because of the importance or status of the grantee or

because of its need for the privilege? Or have the grantees been

chosen pell-mell, as it were, without any basis at all for the selection?

We reject outright the last conjecture as there is no doubt that the

statute as a whole was carefully deliberated upon, by the political

departments before it was finally enacted. There is reason to suspect,

however, that not enough care or attention was given to its repealing

clause, resulting in the unwitting withdrawal of the franking privilege

from the Judiciary.

We also do not believe that the basis of the classification was mere

courtesy, for it is unimaginable that the political departments would

have intended this serious slight to the Judiciary as the third of the

major and equal departments the government. The same observations

are made if the importance or status of the grantee was the criterion

used for the extension of the franking privilege, which is enjoyed by

the National Census and Statistics Office and even some private

individuals but not the courts of justice.

In our view, the only acceptable reason for the grant of the franking

privilege was the perceived need of the grantee for the

accommodation, which would justify a waiver of substantial revenue

by the Corporation in the interest of providing for a smoother flow of

communication between the government and the people.

Assuming that basis, we cannot understand why, of all the

departments of the government, it is the Judiciary, that has been

denied the franking privilege. There is no question that if there is any

major branch of the government that needs the privilege, it is the

Judicial Department, as the respondents themselves point out.

Curiously, the respondents would justify the distinction on the basis

precisely of this need and, on this basis, deny the Judiciary the

franking privilege while extending it to others less deserving.

In their Comment, the respondents point out that available data from

the Postal Service Office show that from January 1988 to June 1992,

the total volume of frank mails amounted to P90,424,175.00. Of this

amount, frank mails from the Judiciary and other agencies whose

functions include the service of judicial processes, such as the

intervenor, the Department of Justice and the Office of the

Ombudsman, amounted to P86,481,759. Frank mails coming fromthe

Judiciary amounted to P73,574,864.00, and those coming from the

petitioners reached the total amount of P60,991,431.00. The

respondents‘ conclusion is that because of this considerable volume

of mail from the Judiciary, the franking privilege must be withdrawn

from it.

The argument is self-defeating. The respondents are in effect saying

that the franking privilege should be extended only to those who do

not need it very much, if at all, (like the widows of former Presidents)

but not to those who need it badly (especially the courts of justice). It

is like saying that a person may be allowed cosmetic surgery

although it is not really necessary but not an operation that can save

his life.

If the problem of the respondents is the loss of revenues from the

franking privilege, the remedy, it seems to us, is to withdraw it

altogether from all agencies of government, including those who do

not need it. The problem is not solved by retaining it for some and

withdrawing it from others, especially where there is no substantial

distinction between those favored, which may or may not need it at

all, and the Judiciary, which definitely needs it. The problem is not

solved by violating the Constitution.

In lumping the Judiciary with the other offices from which the

franking privilege has been withdrawn, Section 35 has placed the

courts of justice in a category to which it does not belong. If it

recognizes the need of the President of the Philippines and the

members of Congress for the franking privilege, there is no reason

why it should not recognize a similar and in fact greater need on the

46

part of the Judiciary for such privilege. While we may appreciate the

withdrawal of the franking privilege from the Armed Forces of the

Philippines Ladies Steering Committee, we fail to understand why

the Supreme Court should be similarly treated as that Committee.

And while we may concede the need of the National Census and

Statistics Office for the franking privilege, we are intrigued that a

similar if not greater need is not recognized in the courts of justice.

(On second thought, there does not seem to be any justifiable need

for withdrawing the privilege from the Armed Forces of the

Philippines Ladies Steering Committee, which, like former Presidents

of the Philippines or their widows, does not send as much frank mail

as the Judiciary.)

It is worth observing that the Philippine Postal Corporation, as a

government-controlled corporation, was created and is expected to

operate for the purpose of promoting the public service. While it may

have been established primarily for private gain, it cannot excuse

itself from performing certain functions for the benefit of the public

in exchange for the franchise extended to it by the government and

the many advantages it enjoys under its charter. 14 Among the

services it should be prepared to extend is free carriage of mail for

certain offices of the government that need the franking privilege in

the discharge of their own public functions.

We also note that under Section 9 of the law, the Corporation is

capitalized at P10 billion pesos, 55% of which is supplied by the

Government, and that it derives substantial revenues from the sources

enumerated in Section 10, on top of the exemptions it enjoys. It is not

likely that the retention of the franking privilege of the Judiciary will

cripple the Corporation.

At this time when the Judiciary is being faulted for the delay in the

administration of justice, the withdrawal from it of the franking

privilege can only further deepen this serious problem. The volume

of judicial mail, as emphasized by the respondents themselves,

should stress the dependence of the courts of justice on the postal

service for communicating with lawyers and litigants as part of the

judicial process. The Judiciary has the lowest appropriation in the

national budget compared to the Legislative and Executive

Departments; of the P309 billion budgeted for 1993, only .84%, or

less than 1%, is alloted for the judiciary. It should not be hard to

imagine the increased difficulties of our courts if they have to affix a

purchased stamp to every process they send in the discharge of their

judicial functions.

We are unable to agree with the respondents that Section 35 of R.A.

No. 7354 represents a valid exercise of discretion by the Legislature

under the police power. On the contrary, we find its repealing clause

to be a discriminatory provision that denies the Judiciary the equal

protection of the laws guaranteed for all persons or things similarly

situated. The distinction made by the law is superficial. It is not based

on substantial distinctions that make real differences between the

Judiciary and the grantees of the franking privilege.

This is not a question of wisdom or power into which the Judiciary

may not intrude. It is a matter of arbitrariness that this Court has the

duty and power to correct.

IV

In sum, we sustain R.A. No. 7354 against the attack that its subject is

not expressed in its title and that it was not passed in accordance with

the prescribed procedure. However, we annul Section 35 of the law

as violative of Article 3, Sec. 1, of the Constitution providing that no

person shall ―be deprived of the equal protection of laws.‖

We arrive at these conclusions with a full awareness of the criticism

it is certain to provoke. While ruling against the discrimination in this

case, we may ourselves be accused of similar discrimination through

the exercise of our ultimate power in our own favor. This is

inevitable. Criticism of judicial conduct, however undeserved, is a

fact of life in the political system that we are prepared to accept.. As

judges, we cannot debate with our detractors. We can only decide the

cases before us as law imposes on us the duty to be fair and our own

conscience gives us the light to be right.

ACCORDINGLY, the petition is partially GRANTED and Section

35 of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular

No. 92-28 is SET ASIDE insofar as it withdraws the franking

privilege from the Supreme Court, the Court of Appeals, the Regional

trail Courts, the Municipal trial Courts, and the National Land

Registration Authority and its Register of Deeds to all of which

offices the said privilege shall be RESTORED. The temporary

restraining order dated June 2, 1992, is made permanent.

SO ORDERED.

Phil judges assoc v prado digest

Equal Protection” – Franking Privilege of the Judiciary

A report came in showing that available data from the Postal Service

Office show that from January 1988 to June 1992, the total volume of

frank mails amounted to P90,424,175.00, of this amount, frank mails

from the Judiciary and other agencies whose functions include the

service of judicial processes, such as the intervenor, the Department

of Justice and the Office of the Ombudsman, amounted to

P86,481,759. Frank mails coming from the Judiciary amounted to

P73,574,864.00, and those coming from the petitioners reached the

total amount of P60,991,431.00. The postmaster‘s conclusion is that

because of this considerable volume of mail from the Judiciary, the

franking privilege must be withdrawn from it. Acting from this,

Prado implemented Circ. No. 9228 as the IRR for the said law. PJA

assailed the said law complaining that the law would adversely

impair the communication within the judiciary as it may impair the

sending of judicial notices. PJA averred that the law is discriminatory

as it disallowed the franking privilege of the Judiciary but has not

disallowed the franking privilege of others such as the executive,

former executives and their widows among others.

ISSUE: Whether or not there has been a violation of equal protection

before the law.

HELD: The SC ruled that there is a violation of the equal protection

clause. The judiciary needs the franking privilege so badly as it is

vital to its operation. Evident to that need is the high expense allotted

to the judiciary‘s franking needs. The Postmaster cannot be sustained

in contending that the removal of the franking privilege from the

judiciary is in order to cut expenditure. This is untenable for if the

Postmaster would intend to cut expenditure by removing the franking

privilege of the judiciary, then they should have removed the

franking privilege all at once from all the other departments. If the

problem of the respondents is the loss of revenues from the franking

privilege, the remedy is to withdraw it altogether from all agencies of

the government, including those who do not need it. The problem is

not solved by retaining it for some and withdrawing it from others,

especially where there is no substantial distinction between those

47

favored, which may or may not need it at all, and the Judiciary, which

definitely needs it. The problem is not solved by violating the

Constitution.

The equal protection clause does not require the universal application

of the laws on all persons or things without distinction. This might in

fact sometimes result in unequal protection, as where, for example, a

law prohibiting mature books to all persons, regardless of age, would

benefit the morals of the youth but violate the liberty of adults. What

the clause requires is equality among equals as determined according

to a valid classification. By classification is meant the grouping of

persons or things similar to each other in certain particulars and

different from all others in these same particulars.

In lumping the Judiciary with the other offices from which the

franking privilege has been withdrawn, Sec 35 has placed the courts

of justice in a category to which it does not belong. If it recognizes

the need of the President of the Philippines and the members of

Congress for the franking privilege, there is no reason why it should

not recognize a similar and in fact greater need on the part of the

Judiciary for such privilege.

48