CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners, vs. THE SENATE BLUE RIBBON COMMITTEE AND ITS Contents MEMBERS, represented by and through the CHAIRMAN, HON. Arnault v. nazareno digest...... WIGBERTO...... TAÑADA, ...... respondents, JOSE 1 S. SANDEJAS, intervenor. Bengzon v senate ...... 1 Bengzon v senate digest ...... Bengzon,...... Zarraga, Narciso,...... Cudala, Pecson 7 & Bengson for Senate v. ermita ...... petitioners...... 7 Senate v. ermita digest ...... 9 In re: sabio ...... Balgos & Perez...... for intervening petitioner...... 10 In re: sabio digest ...... 18 Brillantes v. comelec ...... Eddie Tamondong and...... Antonio T. Tagaro for respondents. 18 Brillantes v. comelec digest ...... 31

Bayani v. Zamora ...... 32 Bayani v. Zamora digest ...... PADILLA,...... J.:p ...... 41 Estrada v. dessierto digest ...... 42 Phil judges assoc v prado ...... This...... is a petition for prohibition...... with prayer 42 for the issuance of a Phil judges assoc v prado digest...... temporary ...... restraining order and/or...... injuective 46 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 Arnault v. nazareno digest Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

Inquiry in Aid of Legislation On 30 July 1987, the Republic of the , represented by the Presidential Commission on Good Government (PCGG), assisted by This case arose from the legislative inquiry into the acquisition by the the Solicitor General, filed with the Sandiganbayan Civil Case No. Philippine Government of the Buenavista and Tambobong estates 0035 (PCGG Case No. 35) entitled "Republic of the Philippines vs. sometime in 1949. Among the witnesses called to be examined by the Benjamin "Kokoy" Romualdez, et al.", for reconveyance, reversion, special committee created by a Senate resolution was Jean L. Arnault, accounting, restitution and damages. a lawyer who delivered a partial of the purchase price to a representative of the vendor. During the Senate investigation, Arnault The complaint was amended several times by impleading new refused to reveal the identity of said representative, at the same time defendants and/or amplifying the allegations therein. Under the invoking his constitutional right against self-incrimination. The Second Amended Complaint, 1 the herein petitioners were impleaded Senate adopted a resolution committing Arnault to the custody of the as party defendants. Sergeant-at-Arms and imprisoned ―until he shall have purged the contempt by revealing to the Senate . . . the name of the person to The complaint insofar as pertinent to herein petitioners, as whom he gave the P440,000, as well as answer other pertinent defendants, alleges among others that: questions in connection therewith.‖ Arnault petitioned for a writ of Habeas Corpus 14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by themselves and/or in unlawful concert with ISSUE: Can the senate impose penalty against those who refuse to Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking answer its questions in a congressional hearing in aid of legislation. undue advantage of their relationship, influence and connection with the latter Defendant spouses, engaged in devices, schemes and HELD: It is the inherent right of the Senate to impose penalty in strategems to unjuestly enrigh themselves at the expense of Plaintiff carrying out their duty to conduct inquiry in aid of legislation. But it and the Filipino people, among others: must be herein established that a witness who refuses to answer a query by the Committee may be detained during the term of the (a) Obatained, with the active collaboration of Defendants Sene J. members imposing said penalty but the detention should not be too Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. long as to violate the witness‘ right to due process of law. 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 Bengzon v senate 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 G.R. No. 89914 November 20, 1991 enterprises in the Philippines, such as the Corporation (), Benguet Consolidated and the Philippine Commercial JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE International Bank (PCI Bank) by employing devious financial MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA, schemes and techniques calculated to require the massive infusion KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO 1 and hemorrhage of government funds with minimum or negligible the consequent reversion of the assigned brought the total "cashout" from Defendant Benjamin Romualdez... 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 xxx xxx xxx 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 (m) manipulated, with the support, assistance and collaboration of ceiling prescribed by Section 12-B of the General Banking Act, Philgurantee officials led by chairman Cesar E.A. Virata and the although they know for a fact that what the law declares as unlawful Senior managers of FMMC/PNI Holdings, Inc. led by Jose S. and void ab initio are the subscriptions in excess of the 30% ceiling Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr., among "to the extent of the excess over any of the ceilings prescribed ..." and others, the formation of Erectors Holdings, Inc. without infusing not the whole or entire stockholding which they allowed to stay for additional capital solely for the purpose of Erectors Incorporated with six years (from June 30, 1980 to March 24, 1986); 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 (q) cleverly hid behind the veil of corporate entity, through the use of Philgurantee has reached a total of more than P2 Billion as of June the names and managerial expertise of the FMMC senior manager 30, 1987. 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 (n) at the onset of the present Administration and/or within the week legal talents of corporate lawyers, such as Attys. Jose F.S. Bengzon, following the February 1986 People's Revolution, in conspiracy with, Jr., Jose V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. supoort, assistance and collaboration of the abovenamed lawyers of Cruz, the ill-gotten wealth of Benjamin T. Romualdez including, the Bengzon Law Offices, or specifically Defendants Jose F.S. among others, the 6,229,177 shares in PCIB registered in the names Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto of Trans Middle East Phils. Equities, Inc. and Edilberto S. Narciso, S. Narciso, Jr., manipulated, shcemed, and/or executed a series of Jr. which they refused to surrender to PCGG despite their disclosure devices intended to conceal and place, and/or for the purpose of as they tried and continue to exert efforts in getting hold of the same concealing and placing, beyond the inquiry and jurisdiction of the as well as the shares in Benguet registered in the names of Palm Presidential Commission on Good Government (PCGG) herein Avenue Holdings and Palm Avenue Realty Development Corp. Defendant's individual and collective funds, properties, and assets purportedly to be applied as payment for the claim of P70 million of subject of and/or suited int he instant Complaint. a "merger company of the First Manila Managerment Corp. group" supposedly owned by them although the truth is that all the said firms (o) manuevered, with the technical know-how and legalitic talents of are still beneficially owned by defendants Benjamin Romualdez. the FMMC senior manager and some of the Bengzon law partners, such as Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr., xxx xxx xxx 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 On 28 September 1988, petitioner (as defendants) filed their (A & E), (iii) First Manila Managerment Corporation (FMMC), (iv) respective answers. 2 Meanwhile, from 2 to 6 August 1988, Philippine World Travel Inc. (PWTI) and its subsidiaries consisting conflicting reports on the disposition by the PCGG of the of 36 corporations in all, to PNI Holdings, Inc. (wjose purported "Romualdez corporations" were carried in various metropolitan incorporations are all members of Atty. Jose F.S. Bengzon's law firm) newspapers. Thus, one newspaper reported that the Romuladez firms for only P5 million on March 3, 1986 or three days after the creation had not been sequestered because of the opposition of certain PCGG of the Presidential Commission on Good Government on February officials who "had worked prviously as lawyers of the Marcos crony 28, 1986, for the sole purpose of deceiving and preempting the firms." Another daily reported otherwise, while others declared that Government, particularly the PCGG, and making it appear that on 3 March 1986, or shortly after the EDSA February 1986 defendant Benjamin Romualdez had already divested himself of his revolution, the Romualdez companies" were sold for P5 million, ownership of the same when in truth and in fact, his interests are well without PCGG approval, to a holding company controlled by intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some Romualdez, and that Ricardo Lopa, the President's brother-in-law, of his law partners, together with the FMMC senior managers who had effectively taken over the firms, even pending negotiations for still control and run the affiars of said corporations, and in order to the purchase of the corporations, for the same price of P5 million entice the PCGG to approve the said fictitious sale, the above-named which was reportedly way below the fair value of their assets. 3 defendants offered P20 million as "donation" to the Government; On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan (p) misused, with the connivance, support and technical assitance of Ponce Enrile delivered a speech "on a matter of personal privilege" the Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as before the Senate on the alleged "take-over personal privilege" before legal counsel, together with defendants Cesar Zalamea, Antonio the Senate on the alleged "take-over of SOLOIL Incorporated, the Ozaeta, Mario D. Camacho amd Senen J. Gabaldon as members of flaship of the First Manila Management of Companies (FMMC) by the Board of Directors of the Philippine Commercial International Ricardo Lopa" and called upon "the Senate to look into the possible bank (PCIB), the Meralco Pension Fund (Fund, for short) in the violation of the law in the case, particularly with regard to Republic amount of P25 million by cuasing it to be invested in the PCIB and Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4 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 On motion of Senator Orlando Mercado, the matter was referred by Bank and (b) "Deposit in Subscription" in the amount of the Senate to the Committee on Accountability of Public Officers P4,929.972.50 but of the agreed consideration of P28 million for the (Blue Ribbon Committee). 5 Thereafter, the Senate Blue Ribbon said assignment, PCI Development and PCI Equity were able to pay Committee started its investigation on the matter. Petitioners and only P5,500.00 downpayment and the first amortization of Ricardo Lopa were subpoenaed by the Committee to appear before it P3,937,500.00 thus prompting the Fund to rescind its assignment, and 2 and testify on "what they know" regarding the "sale of thirty-six (36) xxx xxx xxx corporations belonging to Benjamin "Kokoy" Romualdez." But in the main, the Constitution has blocked out with deft strokes At the hearing held on 23 May 1989, Ricardo Lopa declined to testify and in bold lines, allotment of power to the executive, the legislative on the ground that his testimony may "unduly prejudice" the and the judicial departments of the government. The ovelapping and defendants in Civil Case No. 0035 before the Sandiganbayan. interlacing of funcstions and duties between the several deaprtments, Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing however, sometimes makes it hard to say just where the political his constitutional right to due process, and averring that the publicity excitement, the great landmarks of the Constitution are apt to be generated by respondents Committee's inquiry could adversely affect forgotten or marred, if not entirely obliterated, in cases of conflict, his rights as well as those of the other petitioners who are his co- the judicial departments is the only constitutional organ which can be defendants in Civil Case No. 0035 before the Sandiganbayan. called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units The Senate Blue Ribbon Committee, thereupon, suspended its inquiry thereof. and directed the petitioners to file their memorandum on the constitutional issues raised, after which, it issued a resolution 6 dated xxx xxx xxx 5 June 1989 rejecting the petitioner's plea to be excused from testifying, and the Committee voted to pursue and continue its The Constitution is a definition of the powers of government. Who is investigation of the matter. Senator dissented. 7 to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the Claiming that the Senate Blue Ribbon Committee is poised to judiciary as the rational way. And when the judiciary mediates to subpoena them and required their attendance and testimony in allocate constitutional boundaries; it does not assert any superiority proceedings before the Committee, in excess of its jurisdiction and over the other departments; it does not inr eality nullify or invalidate legislative purpose, in clear and blatant disregard of their an act of the legislature, but only asserts the solemn and sacred constitutional rights, and to their grave and irreparable damager, obligation assigned to it by tyhe Constitution to determine conflicting prejudice and injury, and that there is no appeal nor any other plain, claims of authority under the Constitution and to established for the speedy and adequate remedy in the ordinary course of law, the parties in an actual controversy the rights which that instrument petitioners filed the present petition for prohibition with a prayer for secures and guarantess to them. This is in thruth all that is involved in temporary restraning order and/or injunctive relief. what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even the, this power of Meanwhile, one of the defendants in Civil Case No. 0035 before the judicial review is limited to actual cases and controversies to be Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for exercised after full opportunity of argument by the parties, and intervention, 8 which the Court granted in the resolution 9 of 21 limited further to the constitutional question raised or the very lis December 1989, and required the respondent Senate Blue Ribbon mota presented. Any attempt at abstraction could only lead to Committee to comment on the petition in intervention. In dialectics and barren legal questions and to sterile conclusions compliance, therewith, respondent Senate Blue Ribbon Committee unrelated to actualities. Narrowed as its function is in this manner, filed its comment 10 thereon. 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 Before discussing the issues raised by petitioner and intervenor, we because the legislature is presumed to abide by the Constitution but will first tackle the jurisdictional question raised by the respondent also becuase the judiciary in the determination of actual cases and Committee. controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and In its comment, respondent Committee claims that this court cannot legislative departments of the government. properly inquire into the motives of the lawmakers in conducting legislative investigations, much less cna it enjoin the Congress or any The "allocation of constituional boundaries" is a task that this Court its regular and special commitees — like what petitioners seek — must perfomr under the Constitution. Moreowever, as held in a recent from making inquiries in aid of legislation, under the doctrine of case, 12 "(t)he political question doctrine neither interposes an separation of powers, which obtaines in our present system of obstacle to judicial determination of the rival claims. The jurisdiction government. to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, The contention is untenable. In Angara vs. Electoral Commission, 11 although said provision by no means does away with kthe the Court held: applicability of the principle in appropriate cases." 13

The separation of powers is a fundamental principle in our system of The Court is thus of the considered view that it has jurisdiction over government. It obtains not hrough express provision but by actual the present controversy for the purpose of determining the scope and division in our Constitution. Each department of the government has extent of the power of the Senate Blue Ribbon Committee to conduct exclusive cognizance of matters wihtin its jurisdiction, and is inquiries into private affirs in purported aid of legislation. 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 Coming to the specific issues raised in this case, petitioners contend Constitution intended them to be absolutely unrestrained and that (1) the Senate Blue Ribbon Committee's inquiry has no valid independent of each other. The Constitution has provided for an legislative purpose, i.e., it is not done in aid of legislation; (2) the sale elaborate system of checks and balances to secure coordination in the or disposition of hte Romualdez corporations is a "purely private workings of the various departments of the government... transaction" which is beyond the power of the Senate Blue Ribbon

3

Committee to inquire into; and (3) the inquiry violates their right to Mr. President, I rise this afternnon on a matter of personal privilege; due process. 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 The 1987 Constition expressly recognizes the power of both houses Lopa, wherein he denied categorically that he has taken over the First of Congress to conduct inquiries in aid of legislation. 14 Thus, Manila Management Group of Companies which includes SOLOIL Section 21, Article VI thereof provides: Incorporated.

The Senate or the House of Representatives or any of its respective xxx xxxx xxx committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons In answer to Mr. Lopa, I will quote pertinent portions from an appearing in or affected by such inquiries shall be respected. 15 Official Memorandum to the Presidential Commission of Good Government written and signed by former Governor, now The power of both houses of Congress to conduct inquiries in aid of Congressman Jose Ramirez, in his capacity as head of the PCGG legislation is not, therefore, absolute or unlimited. Its exercise is Task Force for Region VIII. In his memorandum dated July 3, 1986, circumscribed by the afore-quoted provision of the Constitution. then Governor Ramirez stated that when he and the members of his Thus, as provided therein, the investigation must be "in aid of task force sought to serve a sequestration order on the management of legislation in accordance with its duly published rules of procedure" SOLOIL in Tanauan, Leyte, management officials assured him that and that "the rights of persons appearing in or affected by such relatives of the President of the Philippines were personally inquiries shall be respected." It follows then that the rights of persons discussing and representing SOLOIL so that the order of under the Bill of Rights must be respected, including the right to due sequestration would be lifted and that the new owner was Mr. process and the right not to be compelled to testify against one's self. Ricardo A. Lopa.

The power to conduct formal inquiries or investigations in I will quote the pertinent portions in the Ramire's memorandum. specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to The first paragraph of the memorandum reads as follows and I quote, the implementation or re-examination of any law or in connection Mr. President: with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the "Our sequestration work of SOLOIL in Tanauan, Leyte was not Constitution in Congress and/or in the Seante alone. heeded by management because they said another representation was being made to this Commission for the ventual lifting of our As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, sequestrationorder. They even assured us that Mr. Ricardo Lopa and to be within the jurisdiction of the legislative body making it, must be Peping Cojunangco were personally discussing and representing material or necessary to the exervise of a power in it vested by the SOLOIL, so the order of sequestration will finally be lifted. While we Constitution, such as to legislate or to expel a member. attempted to carry on our order, management refused to cooperate and vehemently turned down our request to make available to us the Under Sec. 4 of the aforementioned Rules, the Senate may refer to records of the company. In fact it was obviously clear that they will any committee or committees any speech or resolution filed by any meet us with forcethe moment we insist on doing normally our Senator which in tis judgment requires an appropriate inquiry in aid assigned task. In view of the impending threat, and to avoid any of legislation. In order therefore to ascertain the character or nature of untoward incident we decided to temporarily suspend our work until an inquiry, resort must be had to the speech or resolution under which there is a more categorical stand of this Commission in view of the such an inquiry is proposed to be made. seemingly influential represetation being made by SOLOIL for us not to continue our work." A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers Another pertinent portion of the same memorandum is paragraph on 2 September 1988 accusing Mr. Ricardo "Baby" Lopa of "having five, which reads as follows, and I quote Mr. President: taken over the FMMC Group of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September "The President, Mr. Gamboa, this is, I understand, the President of 1988 categorically denying that he had "taken over " the FMMC SOLOIL, and the Plant Superintendent, Mr. Jimenez including their Group of Companies; that former PCGG Chairman Ramon Diaz chief counsel, Atty. Mandong Mendiola are now saying that there himself categorically stated in a telecast interview by Mr. Luis have been divestment, and that the new owner is now Mr. Ricardo Beltran on Channel 7 on 31 August 1988 that there has been no Lopa who according to them, is the brother-in-law of the President. takeover by him (Lopa); and that theses repeated allegations of a They even went further by telling us that even Peping Cojuangco "takeover" on his (Lopa's) part of FMMC are baseless as they are who we know is the brother of her excellency is also interested in the malicious. ownership and management of SOLOIL. When he demanded for supporting papers which will indicate aforesaid divestment, Messrs. The Lopa reply prompted Senator Enrile, during the session of the Gamboa, Jimenez and Mendiola refused vehemently to submit these Senate on 13 September 1988, to avail of the privilege hour, 17 so papers to us, instead they said it will be submitted directly to this that he could repond to the said Lopa letter, and also to vindicate his Commission. To our mind their continuous dropping of names is not reputation as a Member of the Senate of the Philippines, considering good for this Commission and even to the President if our dersire is the claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had to achieve respectability and stability of the government." taken over the FMMC Group of Companies are "baseless" and "malicious." Thus, in his speech, 18 Senator Enrile said, among The contents of the memorandum of then Governor and now others, as follows: Congressman Jose Ramirez were personally confirmed by him in a news interview last September 7, 1988. 4 xxx xxxx xxx exploration firm.The pertinent portion of Senate Resolution No. 212 reads as follows: Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa himself in August 11, 1988 issue of the newspaper Malaya xxx xxx xxx headlined "On Alleged Takeover of Romualdez Firms." WHEREAS, recent developments have shown that no less than the Mr. Lopa states in the last paragraph of the published letter and I Solicitor-General has stated that the PCGG Chairman and at least quote him: three Commissioners should resign and that the agency should rid itself of "ineptness, incompetence and corruption" and that the 12. As of this writing, the sales agreement is under review by the Sandiganbayan has reportedly ordered the PCGG to answer charges PCGG solely to determine the appropriate price. The sale of these filed by three stockholders of Oriental Petroleum that it has adopted a companies and our prior rigtht to requires them have never been at "get-rich-quick scheme" for its nominee-directors in a sequestered oil issue. exploration firm;

Perhaps I could not make it any clearer to Mr. Lopa that I was not WHEREAS, leaders of school youth, community groups and youth of really making baseless and malicious statements. 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 Senator Enrile concluded his privilege speech in the following tenor: changes expected by the people when the EDSA revolution took place and that the ill-gotten wealth to be recovered will fund priority Mr. President, it may be worthwhile for the Senate to look into the projects which will benefit our people such as CARP, free education possible violation of the law in the case particularly with regard to in the elementary and secondary levels reforestration, and Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, employment generation for rural and urban workers; Section 5 of which reads as follows and I quote: WHEREAS, the government and the present leadeship must Sec. 5. Prohibition on certain relatives. — It shall be unlawful for the demonstrate in their public and private lives integrity, honor and spouse or for nay relative, by consanguinity or affinity, within the efficient management of government services lest our youth become third civil degree, of the President of the Philippines, the Vice- disillusioned and lose hope and return to an Idelogy and form of President of the Philippines, the President of the Senate, or the government which is repugnant to true freedom, democratic Speaker of the House of Representatives, to intervene directly or participation and human rights: Now, therefore, be it. indirectly, in any business, transaction, contract or application with the Government: Provided, that this section shall not apply to any Resolved by the Senate, That the activities of the Presidential person who prior to the assumption of office of any of the above Commission on Good Government be investigated by the appropriate officials to whom he is related, has been already dealing with the Committee in connection with the implementation of Section 26, Government along the same line of business, nor to any transaction, Article XVIII of the Constitution. 19 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 Thus, the inquiry under Senate Resolution No. 212 is to look into the performed in an official capacity or in the exercise of a profession. 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. Mr. President, I have done duty to this Senate and to myself. I leave it to this august Body to make its own conclusion. It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator , i.e., the Verily, the speech of Senator Enrile contained no suggestion of alleged sale of the 36 (or 39) corporations belonging to Benjamin contemplated legislation; he merely called upon the Senate to look "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant into a possible violation of Sec. 5 of RA No. 3019, otherwise known to Senate Resolution No. 212 because, firstly, Senator Enrile did not as "The Anti-Graft and Corrupt Practices Act." I other words, the indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the purpose of the inquiry to be conducted by respondent Blue Ribbon herein petitioners are connected with the government but are private commitee was to find out whether or not the relatives of President citizens. 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. It appeals, therefore, that the contemplated inquiry by respondent There appears to be, therefore, no intended legislation involved. 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 The Court is also not impressed with the respondent Committee's President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, argument that the questioned inquiry is to be conducted pursuant to the "Anti-Graft and Corrupt Practices Act", a matter that appears Senate Resolution No. 212. The said resolution was introduced by more within the province of the courts rather than of the legislature. Senator Jose D. Lina in view of the representaions made by leaders of Besides, the Court may take judicial notice that Mr. Ricardo Lopa school youth, community groups and youth of non-governmental died during the pendency of this case. In John T. Watkins vs. United organizations to the Senate Committee on Youth and Sports States, 20 it was held held: 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 ... The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries 5 concerning the administration of existing laws as well as proposed, or that the Congress does not unjustifiably encroah upon an individual's possibly needed statutes. It includes surveys of defects in our right to privacy nor abridge his liberty of speech, press, religion or social,economic, or political system for the purpose of enabling assembly. 23 Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. One of the basic rights guaranteed by the Constitution to an But broad asis this power of inquiry, it is not unlimited. There is no individual is the right against self-incrimination. 24 Thir right general authority to expose the private affairs ofindividuals without constured as the right to remain completely silent may be availed of justification in terms of the functions of congress. This was freely by the accused in a criminal case; but kit may be invoked by other conceded by Solicitor General in his argument in this case. Nor is the witnesses only as questions are asked of them. 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 This distinction was enunciated by the Court in Romeo Chavez vs. legitimate task of Congress. Investigations conducted soly for the The Honorable Court of Appeals, et al. 25 thus — personal aggrandizement of the investigators or to "punish" those investigated are indefensible. (emphasis supplied) Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to It can not be overlooked that when respondent Committee decide to take the witness stand and claim the privilege as each question conduct its investigation of the petitioners, the complaint in Civil No. requiring an incriminating answer is hot at him, an accused may 0035 had already been filed with the Sandiganbayan. A perusal of altother refuse to take the witness stand and refuse to answer any all that complaint shows that one of its principal causes of action against questions. herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez. Moreover, this right of the accused is extended to respondents in Since the issues in said complaint had long been joined by the filing administrative investigations but only if they partake of the nature of of petitioner's respective answers thereto, the issue sought to be a criminal proceeding or analogous to a criminal proceeding. In investigated by the respondent Commitee is one over which Galman vs. Pamaran, 26 the Court reiterated the doctrine in Cabal jurisdiction had been acquired by the Sandiganbayan. In short, the vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to issue had been pre-empted by that court. To allow the respondent invoke the right against self-incrimination not only in criminal Committee to conduct its own investigation of an issue already before proceedings but also in all other types of suit the Sandiganbayan would not only pose the possibility of conflicting judgments betweena legislative commitee and a judicial tribunal, but It was held that: 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. 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 In fine, for the rspondent Committee to probe and inquire into the only when a question which tends to elicit an answer that will same justiciable controversy already before the Sandiganbayan, incriminate him is propounded to him. Clearly then, it is not the would be an encroachment into the exclusive domain of judicial characeter of the suit involved but the nature of the proceedings that jurisdiction that had much earlier set in. In Baremblatt vs. United controls. The privilege has consistenly been held to extend to all States, 21 it was held that: proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. Broad as it is, the power is not, howevern, without limitations. Since congress may only investigate into those areas in which it may We do not here modify these doctrines. If we presently rule that potentially legislate or appropriate, it cannot inquire into matters petitioners may not be compelled by the respondent Committee to which are within the exclusive province of one of the other branches appear, testify and produce evidenc before it, it is only becuase we of the government. Lacking the judicial power given to the Judiciary, hold that the questioned inquiry is not in aid of legislation and, if it cannot inquire into mattes that are exclusively the concern of the pursued, would be violative of the principle of separation of powers Judiciary. Neither can it suplant the Executive in what exclusively between the legislative and the judicial departments of government, belongs to the Executive. ... ordained by the Constitution.

Now to another matter. It has been held that "a congressional WHEREFORE, the petition is GRANTED. The Court holds that, committee's right to inquire is 'subject to all relevant limitations under the facts, including the circumtance that petitioners are placed by the Constitution on governmental action,' including "'the presently impleaded as defendants in a case before the relevant limitations of the Bill of Rights'." 22 Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the respondet Committee, the In another case — respondent Senate Blue Ribbon Committee is hereby enjoined from compelling the petitioners and intervenor to testify before it and ... the mere semblance of legislative purpose would not justify an produce evidence at the said inquiry. 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 SO ORDERED. 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

6

Bengzon v senate digest Senate v. ermita

203 SCRA 767 – Political Law – Constitutional Law – The Republic of the Philippines Legislative Department – Inquiry in Aid of Legislation – When not SUPREME COURT Allowed Manila

It was alleged that Benjamin ―Kokoy‖ Romualdez and his wife EN BANC together with the Marcoses unlawfully and unjustly enriched themselves at the expense of the Filipino people. That they obtained G.R. No. 169777 July 14, 2006 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, SENATE OF THE PHILIPPINES, represented by FRANKLIN Shell Philippines and Benguet Consolidated Mining Corporation. 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, Senator Juan Ponce Enrile subsequently delivered a privilege speech AQUILINO Q. PIMENTEL, JR., in his capacity as Minority alleging that Lopa took over various government owned corporations Leader, SENATORS RODOLFO G. BIAZON, “COMPANERA” which is in violation of the Anti-Graft and Corrupt Practices Act. PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA Contained in the speech is a motion to investigate on the matter. The “LOI” EJERCITO ESTRADA, JUAN PONCE ENRILE, motion was referred to the Committee on Accountability of Public RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO Officers or the Blue Ribbon Committee. After committee hearing, S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. Lopa refused to testify before the committee for it may unduly RECTO, and , Petitioners, 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 vs. baseless and malicious. EDUARDO R. ERMITA, in his capacity as Executive Secretary Enrile subsequently took advantage of the Senate‘s privilege hour and alter-ego of President Gloria Macapagal-Arroyo, and anyone upon which he insisted to have an inquiry regarding the matter. The acting in his stead and in behalf of the President of the SBRC rejected Lopa‘s and Bengzon‘s plea. Philippines, Respondents.

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 G.R. No. 169659 July 14, 2006 legislative purpose, in clear and blatant disregard of their constitutional rights, and to their grave and irreparable damage, represented by DR. REYNALDO LESACA, JR., prejudice and injury, and that there is no appeal nor any other plain, Rep. , Rep. , Rep. speedy and adequate remedy in the ordinary course of law, Bengzon RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO et al filed a petition for prohibition with a prayer for temporary CASINO, Rep. , COURAGE represented by restraining order and/or injunctive relief against the SBRC. FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS ISSUE: Whether or not the inquiry sought by the SBRC be granted. BALBIN, Petitioners,

HELD: No, the inquiry cannot be given due course. The speech of vs. Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of EDUARDO ERMITA, in his capacity as Executive Secretary and RA No. 3019, otherwise known as ―The Anti-Graft and Corrupt alter-ego of President Gloria Macapagal-Arroyo, Respondent. 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, G.R. No. 169660 July 14, 2006 therefore, no intended legislation involved. Hence, the contemplated inquiry by the SBRC is not really ―in aid of legislation‖ because it is FRANCISCO I. CHAVEZ, Petitioner, 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. vs. 3019, the ―Anti-Graft and Corrupt Practices Act‖, a matter that appears more within the province of the courts rather than of the EDUARDO R. ERMITA, in his capacity as Executive Secretary, legislature. Besides, the Court may take judicial notice that Mr. AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, Ricardo Lopa died during the pendency of this case. and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.

7

G.R. No. 169667 July 14, 2006 has not been published, hence, the President may properly prohibit the appearance of executive officials before Congress. ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, Even assuming arguendo that the said Rules of Procedure had not vs. 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 HON. EDUARDO R. ERMITA, in his capacity as Executive legislation. As to the prohibition authorized by Section 3 in relation Secretary, Respondent. 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 G.R. No. 169834 July 14, 2006 before Congress on the ground of lack of published rules of procedure, such would not be an exercise of executive privilege, but PDP- LABAN, Petitioner, 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 vs. information held by the official concerned, as in the case of executive privilege, but on the defective nature of the legislative inquiry EXECUTIVE SECRETARY EDUARDO R. itself. The prohibition under Section 3 in relation to Section 2(b) of ERMITA, Respondent. 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 G.R. No. 171246 July 14, 2006 executive privilege is ―for practical purposes,‖ in that since the President would be in no position to raise an objection the moment a JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, question is asked by Congress, she must be allowed to prohibit the ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA appearance of the official concerned, at least until she is able to A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. thoroughly discuss the matter with the said official. For, so LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. respondents contend, ―once the information has been coerced out of DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED the official, there is no turning back, and the damage that could result BAR FOR THE PHILIPPINES, Petitioners, might be devastating to the functioning of government.‖ vs. The tentative prevention of an official from appearing before Congress pending discussion of the matter on inquiry with the HON. EXECUTIVE SECRETARY EDUARDO R. President cannot, however, be properly deemed an exercise of ERMITA, Respondent. 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 R E S O L U T I O N nature. Certainly, Congress cannot be bound by such a tenuous invocation of the privilege. CARPIO MORALES, J.: The executive branch, nonetheless, need not be apprehensive that it Pending consideration are 1) the Motion for Reconsideration dated might not be able to invoke executive privilege in time to prevent May 18, 2006 filed by respondents, praying that the Decision disclosures of legitimately confidential information. As this Court promulgated on April 20, 2006 (the Decision) be set aside, and 2) the stated in the Decision, the President and the Executive Secretary must Motion for Reconsideration dated May 17, 2006 filed by petitioner be given fair opportunity to determine whether the matter under PDP-Laban in so far as the Decision held that it was without the legislative investigation calls for a claim of privilege. To secure this requisite standing to file the petition in G.R. No. 169834. 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 Petitioners Senate of the Philippines et al., Alternative Law Groups, concerned to ask Congress for reasonable time to discuss with her the Inc., Francisco I. Chavez, and PDP-Laban filed their respective subject matter of the investigation. Comments to respondents‘ Motion for Reconsideration.

Section 3 in relation to 2(b) of E.O. 464, however, is far from being a Respecting PDP-Laban‘s Motion for Reconsideration, petitioners mere directive to officials summoned by Congress to ask for time to Senate of the Philippines et al. and petitioner Chavez endorse the confer with the President. It is an authorization for implied claims of same. Respondents, however, pray for its denial. privilege. As such, the criteria for evaluating its validity must be those for claims of executive privilege. On the basis of such criteria, In their Motion for Reconsideration, respondents argue that the the Court found the implied claim authorized under Section 3 in Senate Rules of Procedure Governing Inquiries in Aid of Legislation relation to Section 2(b) of E.O. 464 to be defective.

8

In fine, no argument in respondents‘ Motion for Reconsideration WHEREFORE, the MOTION FOR RECONSIDERATION of merits a reversal or modification of the Decision. Respondents dated May 18, 2006 and the MOTION FOR RECONSIDERATION of Petitioner PDP-Laban dated May 17, As for its Motion for Reconsideration, petitioner PDP-Laban avers 2006 are DENIED WITH FINALITY for lack of merit. The title of that there is no fundamental difference between it and G.R. No. 169777 is amended to include the name Senator Manuel B. petitioner Bayan Muna to justify their unequal treatment since both of Villar, Jr. as one of the petitioners. them have members in Congress. It claims, moreover, that all its members are taxpayers and Filipino citizens whose right to SO ORDERED. information was, as held in the Decision, violated by E.O. 464. Senate v. ermita digest There are, however, fundamental distinctions between PDP- Laban and Bayan Muna which call for this Court‘s contrasting 495 SCRA 170 – Political Law – Constitutional Law – Legislative rulings with regard to their standing. Branch – Question Hour – Constitutionality of E.O. 464

While both parties have members in Congress, PDP-Laban, In 2005, scandals involving anomalous transactions about the North unlike Bayan Muna, is not represented therein as a party-list Rail Project as well as the Garci tapes surfaced. This prompted the organization. The PDP-Laban members in Congress were elected to Senate to conduct a public hearing to investigate the said anomalies represent, not their party, but their constituents, i.e., their legislative particularly the alleged overpricing in the NRP. The investigating district in the case of representatives, or the nation at large in the case Senate committee issued invitations to certain department heads and of senators. The Bayan Muna members in Congress, on the other military officials to speak before the committee as resource persons. hand, were elected precisely to represent their party. In fact, in light Ermita submitted that he and some of the department heads cannot of the party-list system, the representatives from Bayan Muna may be attend the said hearing due to pressing matters that need immediate said to have been elected only indirectly, since it attention. AFP Chief of Staff Senga likewise sent a similar letter. was Bayan Muna itself, as a party, which was voted for in the last Drilon, the senate president, excepted the said requests for they were elections where it received enough votes to entitle it to three seats in sent belatedly and arrangements were already made and scheduled. the House of Representatives. This, again, contrasts with the situation Subsequently, GMA issued EO 464 which took effect immediately. of the PDP-Laban members in Congress who were all elected in their individual capacities. EO 464 basically prohibited Department heads, Senior officials of executive departments who in the judgment of the department heads Indeed, the rights of the Bayan Muna representatives are so are covered by the executive privilege; Generals and flag officers of intertwined with their party‘s right to representation in Congress that, the Armed Forces of the Philippines and such other officers who in in the event they change their party affiliation during their term of the judgment of the Chief of Staff are covered by the executive office, they would have to forfeit their seat– a rule which clearly does privilege; Philippine National Police (PNP) officers with rank of not apply to the PDP-Laban members in Congress. chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive Bayan Muna is thus entitled to participate in the legislative process in privilege; Senior national security officials who in the judgment of a way that cannot be said of PDP-Laban. the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President, from With regard to PDP-Laban‘s assertion that it consists of taxpayers appearing in such hearings conducted by Congress without first and Filipino citizens, suffice it to state that its Petition did not assert securing the president‘s approval. 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 The department heads and the military officers who were invited by transcendental importance, which points were already addressed in the Senate committee then invoked EO 464 to except themselves. the Decision. Despite EO 464, the scheduled hearing proceeded with only 2 military personnel attending. For defying President Arroyo‘s order If PDP-Laban intended to sue as an organization of citizens in pursuit barring military personnel from testifying before legislative inquiries of the right to information of such citizens, it did not so state in its without her approval, Brig. Gen. Gudani and Col. Balutan were petition. As such, the Court could not be satisfied that its relieved from their military posts and were made to face court martial participation in the controversy would ensure ―concrete adverseness proceedings. EO 464‘s constitutionality was assailed for it is alleged which sharpens the presentation of issues upon which the court so that it infringes on the rights and duties of Congress to conduct largely depends for illumination of difficult constitutional questions.‖ investigation in aid of legislation and conduct oversight functions in the implementation of laws. A final point. Petitioners Senate of the Philippines et al., by Manifestation dated April 25, 2006, called this Court‘s attention to ISSUE: Whether or not EO 464 is constitutional. the inadvertent omission, in the title of the petition in G.R. No. 169777, of the name of Senator Manuel B. Villar, Jr. The HELD: The SC ruled that EO 464 is constitutional in part. To Manifestation reiterated an earlier Manifestation dated October 24, determine the validity of the provisions of EO 464, the SC sought to 2005requesting that Senator Villar‘s name be included in the title of distinguish Section 21 from Section 22 of Art 6 of the 1987 said petition. Finding the Manifestations well-taken, the title of G.R. Constitution. The Congress‘ power of inquiry is expressly recognized No. 169777 is hereby amended to reflect the name of in Section 21 of Article VI of the Constitution. Although there is no Senator Villar as one of the petitioners. 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 9 as to be implied. In other words, the power of inquiry – with process In re: sabio to enforce it – is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or Republic of the Philippines effectively in the absence of information respecting the conditions SUPREME COURT which the legislation is intended to affect or change; and where the Manila legislative body does not itself possess the requisite information – which is not infrequently true – recourse must be had to others who do possess it. EN BANC

Section 22 on the other hand provides for the Question Hour. The G.R. No. 174340 October 17, 2006 Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative IN THE MATTER OF THE PETITION FOR ISSUANCE OF Inquiry. The appearance of the members of Cabinet would be very, WRIT OF HABEAS CORPUS OF CAMILO L. SABIO, very essential not only in the application of check and balance but petitioner, 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 J. ERMIN ERNEST LOUIE R. MIGUEL, petitioner-relator, legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in vs. aid of legislation. Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as HONORABLE SENATOR RICHARD GORDON, in his capacity pertaining to the same power of Congress. One specifically relates to as Chairman, and the HONORABLE MEMBERS OF THE the power to conduct inquiries in aid of legislation, the aim of which COMMITTEE ON GOVERNMENT CORPORATIONS AND is to elicit information that may be used for legislation, while the PUBLIC ENTERPRISES and THE COMMITTEE ON PUBLIC other pertains to the power to conduct a question hour, the objective SERVICES of the Senate, HONORABLE SENATOR JUAN of which is to obtain information in pursuit of Congress‘ oversight PONCE-ENRILE, in his official capacity as Member, function. Ultimately, the power of Congress to compel the HONORABLE MANUEL VILLAR, Senate President, SENATE appearance of executive officials under Section 21 and the lack of it SERGEANT-AT-ARMS, and the SENATE OF THE under Section 22 find their basis in the principle of separation of PHILIPPINES, respondents. 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 G.R. No. 174318 October 17, 2006 its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT exempt by the mere fact that they are department heads. Only one (PCGG) and CAMILO L. SABIO, Chairman, NARCISO S. executive official may be exempted from this power — the President NARIO, RICARDO M. ABCEDE, TERESO L. JAVIER and on whom executive power is vested, hence, beyond the reach of NICASIO A. CONTI, Commissioners, MANUEL ANDAL and Congress except through the power of impeachment. It is based on JULIO JALANDONI, PCGG nominees to Philcomsat Holdings her being the highest official of the executive branch, and the due Corporation, petitioners, respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. The requirement then to vs. 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 RICHARD GORDON, in his capacity as Chairman, and department heads in the question hour is discretionary on their part. MEMBERS OF THE COMMITTEE ON GOVERNMENT Section 1 cannot, however, be applied to appearances of department CORPORATIONS AND PUBLIC ENTERPRISES, MEMBERS heads in inquiries in aid of legislation. Congress is not bound in such OF THE COMMITTEE ON PUBLIC SERVICES, SENATOR instances to respect the refusal of the department head to appear in JUAN PONCE-ENRILE, in his capacity as member of both said such inquiry, unless a valid claim of privilege is subsequently made, Committees, MANUEL VILLAR, Senate President, THE either by the President herself or by the Executive Secretary. SENATE SERGEANT-AT-ARMS, and SENATE OF THE PHILIPPINES, respondents. 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 G.R. No. 174177 October 17, 2006 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 PHILCOMSAT HOLDINGS CORPORATIONS, PHILIP G. which Congress requires their appearance is ‗in aid of legislation‘ BRODETT, LUIS K. LOKIN, JR., ROBERTO V. SAN JOSE, under Section 21, the appearance is mandatory for the same reasons DELFIN P. ANGCAO, ROBERTO L. ABAD, ALMA stated in Arnault. KRISTINA ALOBBA, and JOHNNY TAN, petitioners,

10 vs. WHEREAS, the Philippine Star, in its 12 February 2002 issue reported that the executive committee of Philcomsat has precipitately SENATE COMMITTEE ON GOVERNMENT released P265 million and granted P125 million loan to a relative of CORPORATIONS and PUBLIC ENTERPRISES, its an executive committee member; to date there have been no MEMBERS and CHAIRMAN, the HONORABLE SENATOR payments given, subjecting the company to an estimated interest RICHARD GORDON and SENATE COMMITTEE ON income loss of P11.25 million in 2004; PUBLIC SERVICES, its Members and Chairman, the HONORABLE SENATOR JOKER P. ARROYO, respondents. 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 D E C I S I O N of directors;

SANDOVAL-GUTIERREZ, J.: WHEREFORE, be it resolved that the proper Senate Committee shall conduct an inquiry in aid of legislation, on the anomalous Two decades ago, on February 28, 1986, former President Corazon losses incurred by the Philippine Overseas Telecommunications C. Aquino installed her regime by issuing Executive Order (E.O.) No. Corporation (POTC), Philippine Communications Satellite 1,1 creating the Presidential Commission on Good Government Corporation (PHILCOMSAT), and Philcomsat Holdings (PCGG). She entrusted upon this Commission the herculean task of Corporations (PHC) due to the alleged improprieties in the recovering the ill-gotten wealth accumulated by the deposed operations by their respective board of directors. President Ferdinand E. Marcos, his family, relatives, subordinates 2 and close associates. Section 4 (b) of E.O. No. 1 provides that: ―No Adopted. 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.‖ (Sgd) Apparently, the purpose is to ensure PCGG‘s unhampered performance of its task.3 On the same date, February 20, 2006, Senate Res. No. 455 was submitted to the Senate and referred to the Committee on Today, the constitutionality of Section 4(b) is being questioned on the Accountability of Public Officers and Investigations and Committee ground that it tramples upon the Senate‘s power to conduct legislative on Public Services. However, on March 28, 2006, upon motion of Senator Francis N. Pangilinan, it was transferred to the Committee on inquiry under Article VI, Section 21 of the 1987 Constitution, which 5 reads: Government Corporations and Public Enterprises.

The Senate or the House of Representatives or any of its respective On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority committees may conduct inquiries in aid of legislation in accordance of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of with its duly published rules of procedure. The rights of persons the PCGG, one of the herein petitioners, inviting him to be one of the appearing in or affected by such inquiries shall be respected. 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 The facts are undisputed. meeting was to deliberate on Senate Res. No. 455.6

On February 20, 2006, Senator Miriam Defensor Santiago introduced On May 9, 2006, Chairman Sabio declined the invitation because of Philippine Senate Resolution No. 455 (Senate Res. No. 7 4 prior commitment. At the same time, he invoked Section 4(b) of 455), ―directing an inquiry in aid of legislation on the anomalous E.O. No. 1 earlier quoted. losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite On August 10, 2006, Senator Gordon issued a Subpoena Ad Corporation (PHILCOMSAT), and PHILCOMSAT Holdings 8 Corporation (PHC) due to the alleged improprieties in their Testificandum, approved by Senate President Manuel Villar, operations by their respective Board of Directors.‖ 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 The pertinent portions of the Resolution read: what they know relative to the matters specified in Senate Res. No. 455. Similar subpoenae were issued against the directors and officers WHEREAS, in the last quarter of 2005, the representation and of Philcomsat Holdings Corporation, namely: Benito V. Araneta, entertainment expense of the PHC skyrocketed to P4.3 million, as Philip J. Brodett, Enrique L. Locsin, Manuel D. Andal, Roberto L. compared to the previous year‘s mere P106 thousand; Abad, Luis K. Lokin, Jr., Julio J. Jalandoni, Roberto V. San Jose, Delfin P. Angcao, Alma Kristina Alloba and Johnny Tan.9 WHEREAS, some board members established wholly owned PHC subsidiary called Telecommunications Center, Inc. (TCI), where PHC Again, Chairman Sabio refused to appear. In his letter to Senator funds are allegedly siphoned; in 18 months, over P73 million had Gordon dated August 18, 2006, he reiterated his earlier position, been allegedly advanced to TCI without any accountability report invoking Section 4(b) of E.O. No. 1. On the other hand, the directors given to PHC and PHILCOMSAT; and officers of Philcomsat Holdings Corporation relied on the position paper they previously filed, which raised issues on the propriety of legislative inquiry. 11

Thereafter, Chief of Staff Ma. Carissa O. Coscolluela, under the Corporation v. Manuel D. Andal, Civil Case No. 06-095, RTC, authority of Senator Gordon, sent another notice10 to Chairman Sabio Branch 61, City; d. Philippine Communications Satellite requiring him to appear and testify on the same subject matter set on Corporation v. PHILCOMSAT Holdings Corporation, et al., Civil September 6, 2006. The notice was issued ―under the same authority Case No. 04-1049) for which reason they may not be able to testify of the Subpoena Ad Testificandum previously served upon (him) last thereon under the principle of sub judice. The laudable objectives of 16 August 2006.‖ the PCGG‘s functions, recognized in several cases decided by the Supreme Court, of the PCGG will be put to naught if its recovery Once more, Chairman Sabio did not comply with the notice. He sent efforts will be unduly impeded by a legislative investigation of cases a letter11 dated September 4, 2006 to Senator Gordon reiterating his that are already pending before the Sandiganbayan and trial courts. reason for declining to appear in the public hearing. In Bengzon v. Senate Blue Ribbon Committee, (203 SCRA 767, 784 This prompted Senator Gordon to issue an Order dated September 7, [1991]) the Honorable Supreme Court held: 2006 requiring Chairman Sabio and Commissioners Abcede, Conti, Javier and Nario to show cause why they should not be cited in ―…[T]he issues sought to be investigated by the respondent contempt of the Senate. On September 11, 2006, they submitted to Committee is one over which jurisdiction had been acquired by the the Senate their Compliance and Explanation,12 which partly reads: Sandiganbayan. In short, the issue has been pre-empted by that court. To allow the respondent Committee to conduct its own investigation Doubtless, there are laudable intentions of the subject inquiry in of an issue already before the Sandigabayan would not only pose the aid of legislation. But the rule of law requires that even the best possibility of conflicting judgments between a legislative committee intentions must be carried out within the parameters of the and a judicial tribunal, but if the Committee‘s judgment were to be Constitution and the law. Verily, laudable purposes must be carried reached before that of the Sandiganbayan, the possibility of its out by legal methods. (Brillantes, Jr., et al. v. Commission on influence being made to bear on the ultimate judgment of the Elections, En Banc [G.R. No. 163193, June 15, 2004]) Sandiganbayan can not be discounted.

On this score, Section 4(b) of E.O. No. 1 should not be ignored as it x x x x x x explicitly provides: IT IS IN VIEW OF THE FOREGOING No member or staff of the Commission shall be required to testify CONSIDERATIONS that the Commission decided not to attend the or produce evidence in any judicial legislative or administrative Senate inquiry to testify and produce evidence thereat. proceeding concerning matters within its official cognizance. Unconvinced with the above Compliance and Explanation, With all due respect, Section 4(b) of E.O. No. 1 constitutes a the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an limitation on the power of legislative inquiry, and a recognition by 13 the State of the need to provide protection to the PCGG in order to Order directing Major General Jose Balajadia (Ret.), Senate ensure the unhampered performance of its duties under its charter. Sergeant-At-Arms, to place Chairman Sabio and his Commissioners E.O. No. 1 is a law, Section 4(b) of which had not been amended, under arrest for contempt of the Senate. The Order bears the repealed or revised in any way. approval of Senate President Villar and the majority of the Committees’ members. To say the least, it would require both Houses of Congress and Presidential fiat to amend or repeal the provision in controversy. On September 12, 2006, at around 10:45 a.m., Major General Until then, it stands to be respected as part of the legal system in this Balajadia arrested Chairman Sabio in his office at IRC Building, No. jurisdiction. (As held in People v. Veneracion, G.R. Nos. 119987-88, 82 EDSA, Mandaluyong City and brought him to the Senate premises October 12, 1995: Obedience to the rule of law forms the bedrock of where he was detained. our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond Hence, Chairman Sabio filed with this Court a petition for habeas boundaries within which they are required by law to exercise the corpus against the Senate Committee on Government Corporations duties of their office, then law becomes meaningless. A government of and Public Enterprises and Committee on Public Services, their laws, not of men excludes the exercise of broad discretionary powers Chairmen, Senators Richard Gordon and Joker P. Arroyo and by those acting under its authority. Under this system, judges are Members. The case was docketed as G.R. No. 174340. guided by the Rule of Law, and ought to „protect and enforce it without fear or favor,‟ 4 [Act of Athens (1955)] resist encroachments Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier, by governments, political parties, or even the interference of their and the PCGG‘s nominees to Philcomsat Holdings Corporation, own personal beliefs.) Manuel Andal and Julio Jalandoni, likewise filed a petition for certiorari and prohibition against the same respondents, and also x x x x x x against Senate President Manuel Villar, Senator Juan Ponce Enrile, the Sergeant-at-Arms, and the entire Senate. The case was docketed Relevantly, Chairman Sabio‘s letter to Sen. Gordon dated August 19, as G.R. No. 174318. 2006 pointed out that the anomalous transactions referred to in the P.S. Resolution No. 455 are subject of pending cases before the Meanwhile, Philcomsat Holdings Corporation and its officers and regular courts, the Sandiganbayan and the Supreme Court (Pending directors, namely: Philip G. Brodett, Luis K. Lokin, Jr., Roberto V. cases include: a. Samuel Divina v. Manuel Nieto, Jr., et al., CA-G.R. San Jose, Delfin P. Angcao, Roberto L. Abad, Alma Kristina Alobba No. 89102; b. Philippine Communications Satellite Corporation v. and Johnny Tan filed a petition for certiorari and prohibition against Manuel Nieto, et al.; c. Philippine Communications Satellite the Senate Committees on Government Corporations and Public 12

Enterprises and Public Services, their Chairmen, Senators Gordon rights of persons appearing in or affected by such inquiries shall and Arroyo, and Members. The case was docketed as G.R. No. be respected. 174177. On the other arm of the scale is Section 4(b) of E.O. No.1 limiting In G.R. No. 174340 (for habeas corpus) and G.R. No. 174318 (for such power of legislative inquiry by exempting all PCGG members certiorari and prohibition) Chairman Sabio, Commissioners Abcede, or staff from testifying in any judicial, legislative or administrative Conti, Nario, and Javier; and the PCGG‘s nominees Andal and proceeding, thus: Jalandoni alleged: first, respondent Senate Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason; second, the No member or staff of the Commission shall be required to testify inquiries conducted by respondent Senate Committees are not in aid or produce evidence in any judicial, legislative or administrative of legislation; third, the inquiries were conducted in the absence of proceeding concerning matters within its official cognizance. 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. 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 In G.R. No. 174177, petitioners Philcomsat Holdings Corporation Constitution, a brief consideration of the Congress‘ power of inquiry and its directors and officers alleged: first, respondent Senate is imperative. 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 The Congress‘ power of inquiry has been recognized in foreign jurisdictions long before it reached our shores through McGrain v. Legislation; third, the subpoenae against the individual petitioners are 15 16 void for having been issued without authority; fourth, the conduct of Daugherty, cited in Arnault v. Nazareno. In those earlier days, American courts considered the power of inquiry as inherent in the legislative inquiry pursuant to Senate Res. No. 455 constitutes undue 17 encroachment by respondents into justiciable controversies over power to legislate. The 1864 case of Briggs v. MacKellar explains which several courts and tribunals have already acquired jurisdiction; the breath and basis of the power, thus: and fifth, the subpoenae violated petitioners‘ rights to privacy and against self-incrimination. Where no constitutional limitation or restriction exists, it is competent for either of the two bodies composing the legislature to In their Consolidated Comment, the above-named respondents do, in their separate capacity, whatever may be essential to enable countered: first, the issues raised in the petitions involve political them to legislate….It is well-established principle of this questions over which this Court has no jurisdiction; second, Section parliamentary law, that either house may institute any 4(b) has been repealed by the Constitution; third, respondent Senate investigation having reference to its own organization, the conduct Committees are vested with contempt power; fourth, Senate‘s Rules or qualification of its members, its proceedings, rights, or privileges of Procedure Governing Inquiries in Aid of Legislation have been or any matter affecting the public interest upon which it may be duly published; fifth, respondents have not violated any civil right of important that it should have exact information, and in respect to the individual petitioners, such as their (a) right to privacy; which it would be competent for it to legislate. The right to pass and (b) right against self-incrimination; and sixth, the inquiry does laws, necessarily implies the right to obtain information upon any not constitute undue encroachment into justiciable controversies. 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 During the oral arguments held on September 21, 2006, the parties committees, preliminary to legislation, or with the view of were directed to submit simultaneously their respective memoranda advising the house appointing the committee is, as a within a non-extendible period of fifteen (15) days from date. In the parliamentary usage, well established as it is in England, and the meantime, per agreement of the parties, petitioner Chairman Sabio right of either house to compel witnesses to appear and testify before was allowed to go home. Thus, his petition for habeas corpus has its committee, and to punish for disobedience has been frequently become moot. The parties also agreed that the service of the arrest enforced….The right of inquiry, I think, extends to other matters, in warrants issued against all petitioners and the proceedings before the respect to which it may be necessary, or may be deemed advisable to respondent Senate Committees are suspended during the pendency of apply for legislative aid. the instant cases.14 Remarkably, in Arnault, this Court adhered to a similar theory. Citing Crucial to the resolution of the present petitions is the fundamental McGrain, it recognized that the power of inquiry is ―an essential and issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987 appropriate auxiliary to the legislative function,‖ thus: 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 Although there is no provision in the ―Constitution expressly of this issue, all the other issues raised by the parties have become investing either House of Congress with power to make inconsequential. 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 Perched on one arm of the scale of justice is Article VI, Section 21 of words, the power of inquiry – with process to enforce it – is an the 1987 Constitution granting respondent Senate Committees the essential and appropriate auxiliary to the legislative function. A power of legislative inquiry. It reads: legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the The Senate or the House of Representatives or any of its legislation is intended to affect or change; and where the respective committees may conduct inquiries in aid of legislation legislation body does not itself possess the requisite information – in accordance with its duly published rules of procedure. The 13 which is not infrequently true – recourse must be had to others accountability. In Presidential Commission on Good Government v. who possess it.― Peña,25 Justice Florentino P. Feliciano characterized as ―obiter‖ the portion of the majority opinion barring, on the basis of Sections 4(a) Dispelling any doubt as to the Philippine Congress‘ power of inquiry, and (b) of E.O. No. 1, a civil case for damages filed against the provisions on such power made their maiden appearance in Article PCGG and its Commissioners. He eloquently opined: VIII, Section 12 of the 1973 Constitution.18 Then came the 1987 Constitution incorporating the present Article VI, Section 12. What The above underscored portions are, it is respectfully submitted, was therefore implicit under the 1935 Constitution, as influenced by clearly obiter. It is important to make clear that the Court is not American jurisprudence, became explicit under the 1973 and 1987 here interpreting, much less upholding as valid and Constitutions.19 constitutional, the literal terms of Section 4 (a), (b) of Executive Order No.1. If Section 4 (a) were given its literal import as Notably, the 1987 Constitution recognizes the power of investigation, immunizing the PCGG or any member thereof from civil liability not just of Congress, but also of ―any of its committee.‖ This is ―for anything done or omitted in the discharge of the task significant because it constitutes a direct conferral of investigatory contemplated by this Order,‖ the constitutionality of Section 4 (a) power upon the committees and it means that the mechanisms which would, in my submission, be open to most serious doubt. For so the Houses can take in order to effectively perform its investigative viewed, Section 4 (a) would institutionalize the irresponsibility and function are also available to the committees.20 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 It can be said that the Congress‘ power of inquiry has gained more under the 1987 Constitution. x x x. 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 x x x x x x cover officials of the executive branch.” Verily, the Court reinforced the doctrine in Arnault that “the operation of It would seem constitutionally offensive to suppose that a government, being a legitimate subject for legislation, is a proper member or staff member of the PCGG could not be required to subject for investigation” and that ―the power of inquiry is co- testify before the Sandiganbayan or that such members were extensive with the power to legislate.” exempted from complying with orders of this Court.

Considering these jurisprudential instructions, we find Section 4(b) Chavez v. Sandiganbayan26 reiterates the same view. Indeed, Section directly repugnant with Article VI, Section 21. Section 4(b) exempts 4(b) has been frowned upon by this Court even before the filing of the PCGG members and staff from the Congress’ power of the present petitions. inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress‘ power of Corollarily, Section 4(b) also runs counter to the following inquiry, being broad, encompasses everything that concerns the constitutional provisions ensuring the people‘s access to information: 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 Article II, Section 28 Congress to regulate or even abolish.―23 PCGG belongs to this class. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its Certainly, a mere provision of law cannot pose a limitation to the transactions involving public interest. broad power of Congress, in the absence of any constitutional basis. Article III, Section 7 Furthermore, Section 4(b) is also inconsistent with Article XI, Section 1 of the Constitution stating that: ―Public office is a public The right of the people to information on matters of public concern trust. Public officers and employees must at all times be accountable shall be recognized. Access to official records, and to documents, and to the people, serve them with utmost responsibility, integrity, loyalty, papers pertaining to official acts, transactions, or decisions, as well as and efficiency, act with patriotism and justice, and lead modest to government research data used as basis for policy development, lives.‖ shall be afforded the citizen, subject to such limitations as may be provided by law. The provision presupposes that since an incumbent of a public office is invested with certain powers and charged with certain duties These twin provisions of the Constitution seek to promote pertinent to sovereignty, the powers so delegated to the officer are transparency in policy-making and in the operations of the held in trust for the people and are to be exercised in behalf of the government, as well as provide the people sufficient information to government or of all citizens who may need the intervention of enable them to exercise effectively their constitutional rights. Armed the officers. Such trust extends to all matters within the range of with the right information, citizens can participate in public duties pertaining to the office. In other words, public officers are discussions leading to the formulation of government policies and but the servants of the people, and not their rulers.24 their effective implementation. In Valmonte v. Belmonte, Jr.27 the Court explained that an informed citizenry is essential to the Section 4(b), being in the nature of an immunity, is inconsistent with existence and proper functioning of any democracy, thus: the principle of public accountability. It places the PCGG members and staff beyond the reach of courts, Congress and other An essential element of these freedoms is to keep open a continuing administrative bodies. Instead of encouraging public accountability, dialogue or process of communication between the government and the same provision only institutionalizes irresponsibility and non- the people. It is in the interest of the State that the channels for free 14 political discussion be maintained to the end that the government may Revised Administrative Code of 1917 authorizing the Executive to perceive and be responsive to the people‘s will. Yet, this open change the seat of the government of any subdivision of local dialogue can be effective only to the extent that the citizenry is governments, upon the approval of the 1935 Constitution. Section 68 informed and thus able to formulate its will intelligently. Only when was adjudged incompatible and inconsistent with the Constitutional the participants in the discussion are aware of the issues and have grant of limited executive supervision over local governments. access to information relating thereto can such bear fruit. In Islamic Da‟wah Council of the Philippines, Inc., v. Office of the Executive Secretary,34 the Court declared Executive Order No. 46, Consequently, the conduct of inquiries in aid of legislation is not only entitled ―Authorizing the Office on Muslim Affairs to Undertake Philippine Halal Certification,‖ void for encroaching on the religious intended to benefit Congress but also the citizenry. The people are 35 equally concerned with this proceeding and have the right to freedom of Muslims. In The Province of v. Romulo, the participate therein in order to protect their interests. The extent of Court declared some provisions of the General Appropriations Acts their participation will largely depend on the information gathered of 1999, 2000 and 2001 unconstitutional for violating the Constitutional precept on local autonomy. And in Ople v. and made known to them. In other words, the right to information 36 really goes hand-in-hand with the constitutional policies of full public Torres, the Court likewise declared unconstitutional Administrative disclosure and honesty in the public service. It is meant to enhance Order No. 308, entitled ―Adoption of a National Computerized the widening role of the citizenry in governmental decision-making Identification Reference System,‖ for being violative of the right to as well as in checking abuse in the government.28 The cases privacy protected by the Constitution. of Tañada v. Tuvera29 and Legaspi v. Civil Service Commission30 have recognized a citizen‘s interest and personality to These Decisions, and many others, highlight that the Constitution is enforce a public duty and to bring an action to compel public officials the highest law of the land. It is ―the basic and paramount law to and employees to perform that duty. 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 Section 4(b) limits or obstructs the power of Congress to secure from 37 PCGG members and staff information and other data in aid of its Constitution.‖ Consequently, this Court has no recourse but to power to legislate. Again, this must not be countenanced. In Senate v. declare Section 4(b) of E.O. No. 1 repealed by the 1987 Ermita,31 this Court stressed: Constitution.

To the extent that investigations in aid of legislation are generally Significantly, during the oral arguments on September 21, 2006, conducted in public, however, any executive issuance tending to Chairman Sabio admitted that should this Court rule that Section 4(b) unduly limit disclosures of information in such investigations is unconstitutional or that it does not apply to the Senate, he will necessarily deprives the people of information which, being answer the questions of the Senators, thus: presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to CHIEF JUSTICE PANGANIBAN: information which they can use in formulating their own opinions on the matter before Congress – opinions which they can then Okay. Now, if the Supreme Court rules that Sec. 4(b) is communicate to their representatives and other government officials unconstitutional or that it does not apply to the Senate, will you through the various legal means allowed by their freedom of answer the questions of the Senators? expression. CHAIRMAN SABIO: 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 Your Honor, my father was a judge, died being a judge. I was here in violates the Constitution or its basic principles.32 As shown in the the Supreme Court as Chief of Staff of Justice Feria. I would above discussion, Section 4(b) is inconsistent with Article VI, definitely honor the Supreme Court and the rule of law. Section 21 (Congress‘ power of inquiry), Article XI, Section 1 (principle of public accountability),Article II, Section 28 (policy of CHIEF JUSTICE PANGANIBAN: full disclosure) and Article III, Section 7 (right to public information). You will answer the questions of the Senators if we say that?

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

All existing laws, decrees, executive orders, proclamations, letters of Yes, Your Honor. That is the law already as far as I am concerned. instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. 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 The clear import of this provision is that all existing laws, executive effect, his argument that the said provision exempts him and his co- orders, proclamations, letters of instructions and other executive respondent Commissioners from testifying before respondent Senate issuances inconsistent or repugnant to the Constitution are repealed. Committees concerning Senate Res. No. 455 utterly lacks merit.

Jurisprudence is replete with decisions invalidating laws, decrees, Incidentally, an argument repeated by Chairman Sabio is that executive orders, proclamations, letters of instructions and other respondent Senate Committees have no power to punish him and his executive issuances inconsistent with the Constitution. In Pelaez v. Commissioners for contempt of the Senate. Auditor General,33 the Court considered repealed Section 68 of the 15

The argument is misleading. In Arnault v. Balagtas,42 the Court further explained that the contempt power of Congress is founded upon reason and policy and Article VI, Section 21 provides: that the power of inquiry will not be complete if for every contumacious act, Congress has to resort to judicial interference, thus: 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 The principle that Congress or any of its bodies has the power to rights of persons appearing in or affected by such inquiries shall punish recalcitrant witnesses is founded upon reason and policy. Said be respected. 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 It must be stressed that the Order of Arrest for ―contempt of Senate if it cannot require and compel the disclosure of such knowledge Committees and the Philippine Senate‖ was approved by Senate and information if it is impotent to punish a defiance of its power President Villar and signed by fifteen (15) Senators. From this, it and authority? When the framers of the Constitution adopted the can be concluded that the Order is under the authority, not only of the principle of separation of powers, making each branch supreme respondent Senate Committees, but of the entire Senate. within the realm of its respective authority, it must have intended each department’s authority to be full and complete, At any rate, Article VI, Section 21 grants the power of inquiry not independently of the other’s authority or power. And how could only to the Senate and the House of Representatives, but also to any the authority and power become complete if for every act of of their respective committees. Clearly, there is a direct conferral refusal, every act of defiance, every act of contumacy against it, of power to the committees. Father Bernas, in his Commentary on the legislative body must resort to the judicial department for the the 1987 Constitution, correctly pointed out its significance: appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority 43 It should also be noted that the Constitution explicitly recognizes the or dignity. power of investigation not just of Congress but also of ―any of its committees.‖ This is significant because it constitutes a direct In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang conferral of investigatory power upon the committees and it Panlungsod of Dumaguete,44 the Court characterized contempt power means that the means which the Houses can take in order to as a matter of self-preservation, thus: effectively perform its investigative function are also available to 38 the Committees. The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the This is a reasonable conclusion. The conferral of the legislative legislative power, independently of the judicial branch, asserts its power of inquiry upon any committee of Congress must carry with it authority and punishes contempts thereof. The contempt power of the all powers necessary and proper for its effective discharge. legislature is, therefore, sui generis x x x. Otherwise, Article VI, Section 21 will be meaningless. The indispensability and usefulness of the power of contempt in a Meanwhile, with respect to G.R. No. 174177, the petition of legislative inquiry is underscored in a catena of cases, foreign and Philcomsat Holdings Corporation and its directors and officers, this local. Court holds that the respondent Senate Committees‘ inquiry does not violate their right to privacy and right against self-incrimination. 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 One important limitation on the Congress‘ power of inquiry is that court, thus: ―the rights of persons appearing in or affected by such inquiries shall be respected.‖ This is just another way of saying that the power …But the court in its reasoning goes beyond this, and though the of inquiry must be ―subject to the limitations placed by the grounds of the decision are not very clearly stated, we take them to Constitution on government action.‖ As held in Barenblatt v. United be: that there is in some cases a power in each House of Congress States,45 ―the Congress, in common with all the other branches of to punish for contempt; that this power is analogous to that the Government, must exercise its powers subject to the exercised by courts of justice, and that it being the well limitations placed by the Constitution on governmental action, established doctrine that when it appears that a prisoner is held more particularly in the context of this case, the relevant under the order of a court of general jurisdiction for a contempt limitations of the Bill of Rights.‖ of its authority, no other court will discharge the prisoner or make further inquiry into the cause of his commitment. That this First is the right to privacy. is the general rule…as regards the relation of one court to another must be conceded. Zones of privacy are recognized and protected in our laws.46 Within

40 these zones, any form of intrusion is impermissible unless excused by In McGrain, the U.S. Supreme Court held: “Experience has law and in accordance with customary legal process. The meticulous shown that mere requests for such information are often regard we accord to these zones arises not only from our conviction unavailing, and also that information which is volunteered is not that the right to privacy is a ―constitutional right‖ and ―the right most always accurate or complete; so some means of compulsion is valued by civilized men,‖47 but also from our adherence to the essential to obtain what is needed.‖ The Court, in Arnault v. 41 Universal Declaration of Human Rights which mandates that, ―no Nazareno, sustained the Congress‘ power of contempt on the basis one shall be subjected to arbitrary interference with his privacy‖ and of this observation. ―everyone has the right to the protection of the law against such interference or attacks.‖48

16

Our Bill of Rights, enshrined in Article III of the Constitution, Anent the right against self-incrimination, it must be emphasized that provides at least two guarantees that explicitly create zones of this right maybe invoked by the said directors and officers of privacy. It highlights a person‘s ―right to be let alone‖ or the ―right to Philcomsat Holdings Corporation only when the incriminating determine what, how much, to whom and when information about question is being asked, since they have no way of knowing in himself shall be disclosed.‖49 Section 2 guarantees ―the right of the advance the nature or effect of the questions to be asked of people to be secure in their persons, houses, papers and effects them.‖55 That this right may possibly be violated or abused is no against unreasonable searches and seizures of whatever nature ground for denying respondent Senate Committees their power of and for any purpose.‖ Section 3 renders inviolable the ―privacy of inquiry. The consolation is that when this power is abused, such issue communication and correspondence‖ and further cautions that may be presented before the courts. At this juncture, what is ―any evidence obtained in violation of this or the preceding important is that respondent Senate Committees have section shall be inadmissible for any purpose in any proceeding.‖ sufficient Rules to guide them when the right against self- incrimination is invoked. Sec. 19 reads: In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable Sec. 19. Privilege Against Self-Incrimination expectation of privacy and, if so, whether that expectation has been 50 violated by unreasonable government intrusion. Applying this A witness can invoke his right against self-incrimination only when a determination to these cases, the important inquiries are: first, did the question tends to elicit an answer that will incriminate him is directors and officers of Philcomsat Holdings Corporation exhibit a propounded to him. However, he may offer to answer any question in reasonable expectation of privacy?; and second, did the government an executive session. violate such expectation? No person can refuse to testify or be placed under oath or affirmation The answers are in the negative. Petitioners were invited in the or answer questions before an incriminatory question is asked. His Senate‘s public hearing to deliberate on Senate Res. No. 455, invocation of such right does not by itself excuse him from his duty particularly ―on the anomalous losses incurred by the Philippine to give testimony. Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged In such a case, the Committee, by a majority vote of the members improprieties in the operations by their respective board of present there being a quorum, shall determine whether the right has directors.‖ Obviously, the inquiry focus on petitioners‘ acts been properly invoked. If the Committee decides otherwise, it shall committed in the discharge of their duties as officers and directors of resume its investigation and the question or questions previously the said corporations, particularly Philcomsat Holdings refused to be answered shall be repeated to the witness. If the latter Corporation. Consequently, they have no reasonable expectation continues to refuse to answer the question, the Committee may of privacy over matters involving their offices in a corporation punish him for contempt for contumacious conduct. where the government has interest. Certainly, such matters are of public concern and over which the people have the right to The same directors and officers contend that the Senate is barred information. from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate This goes to show that the right to privacy is not absolute where there Rules of Procedure Governing Inquiries in Aid of Legislation provide is an overriding compelling state interest. In Morfe v. Mutuc,51 the that the filing or pendency of any prosecution of criminal or Court, in line with Whalen v. Roe,52 employed the rational basis administrative action should not stop or abate any inquiry to carry out relationship test when it held that there was no infringement of the a legislative purpose. individual‘s right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the Let it be stressed at this point that so long as the constitutional rights opportunities for official corruption, maintain a standard of honesty of witnesses, like Chairman Sabio and his Commissioners, will be in public service, and promote morality in public respected by respondent Senate Committees, it their duty to cooperate administration.53 In Valmonte v. Belmonte,54 the Court remarked that with them in their efforts to obtain the facts needed for intelligent as public figures, the Members of the former legislative action. The unremitting obligation of every citizen is to enjoy a more limited right to privacy as compared to ordinary respond to subpoenae, to respect the dignity of the Congress and its individuals, and their actions are subject to closer scrutiny. Taking Committees, and to testify fully with respect to matters within the this into consideration, the Court ruled that the right of the people to realm of proper investigation. access information on matters of public concern prevails over the right to privacy of financial transactions. In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Under the present circumstances, the alleged anomalies in the Manuel Andal and Julio Jalandoni, PCGG‘s nominees to Philcomsat PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and Holdings Corporation, as well as its directors and officers, must the conspiratorial participation of the PCGG and its officials comply with the Subpoenae Ad Testificandum issued by respondent are compelling reasons for the Senate to exact vital information from Senate Committees directing them to appear and testify in public the directors and officers of Philcomsat Holdings Corporations, as hearings relative to Senate Resolution No. 455. well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate WHEREFORE, the petition in G.R. No. 174340 for habeas remedial measures and policy determination regarding PCGG‘s corpus is DISMISSED, for being moot. The petitions in G.R Nos. efficacy. There being no reasonable expectation of privacy on the 174318 and 174177 are likewise DISMISSED. 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. 17

Section 4(b) of E.O. No. 1 is declared REPEALED by the 1987 COMMISSION ON ELECTIONS, respondent. Constitution. Respondent Senate Committees‘ power of inquiry relative to Senate Resolution 455 is upheld. PCGG Chairman Camilo D E C I S I O N 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 CALLEJO, SR., J.: directors and officers, petitioners in G.R. No. 174177, are ordered to comply with the Subpoenae Ad Testificandum issued by respondent Before us is the petition for certiorari and prohibition under Rule 65 Senate Committees directing them to appear and testify in public of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter hearings relative to Senate Resolution No. 455. and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, SO ORDERED. Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC In re: sabio digest TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.1[1] The 04 SCRA 704 – Political Law – Inquiry in aid of legislation – public petitioner, likewise, prays for the issuance of a temporary restraining officers order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing On February 20, 2006, Senator Miriam Defensor-Santiago introduced the questioned resolution. Senate Res. No. 455 ―directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas After due deliberation, the Court resolved to require the respondent to Telecommunications Corporation (POTC), Philippine comment on the petition and to require the parties to observe the Communications Satellite Corporation (PHILCOMSAT), and status quo prevailing before the issuance by the COMELEC of the PHILCOMSAT Holdings Corporation (PHC) due to the alleged assailed resolution. The parties were heard on oral arguments on improprieties in their operations by their respective Board of May 8, 2004. The respondent COMELEC was allowed during the Directors.‖ Pursuant to this, on May 8, 2006, Senator Richard hearing to make a presentation of the Electronic Transmission, Gordon, wrote Chairman Camilo Sabio of the PCGG inviting him to Consolidation and Dissemination (PHASE III) program of the be one of the resource persons in the public meeting jointly COMELEC, through Mr. Renato V. Lim of the Philippine Multi- conducted by the Committee on Government Corporations and Public Media System, Inc. (PMSI). Enterprises and Committee on Public Services. Chairman Sabio declined the invitation because of prior commitment. At the same The Court, thereafter, resolved to maintain the status quo order issued time, he invoked Section 4(b) of E.O. No. 1 ―No member or staff of on May 6, 2004 and expanded it to cover any and all other issuances the Commission shall be required to testify or produce evidence in related to the implementation of the so-called election quick count any judicial, legislative or administrative proceeding concerning project. In compliance with the resolution of the Court, the matters within its official cognizance.‖ Apparently, the purpose is to respondent, the petitioner and the petitioners-in-intervention ensure PCGG‘s unhampered performance of its task. Gordon‘s submitted the documents required of them. Subpoenae Ad Testificandum was repeatedly ignored by Sabio hence he threatened Sabio to be cited with contempt. The Antecedents ISSUE: Whether or not Section 4 of EO No. 1 is constitutional. On December 22, 1997, Congress enacted Republic Act No. 84362[2] authorizing the COMELEC to use an automated election HELD: No. It can be said that the Congress‘ power of inquiry has system (AES) for the process of voting, counting of votes and gained more solid existence and expansive construal. The Court‘s canvassing/consolidating the results of the national and local high regard to such power is rendered more evident in Senate v. elections. It also mandated the COMELEC to acquire automated Ermita, where it categorically ruled that ―the power of inquiry is counting machines (ACMs), computer equipment, devices and broad enough to cover officials of the executive branch.‖ Verily, the materials; and to adopt new electoral forms and printing materials. 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- The COMELEC initially intended to implement the automation extensive with the power to legislate‖. Subject to reasonable during the May 11, 1998 presidential elections, particularly in the conditions prescribed by law, the State adopts and implements a Autonomous Region in Muslim Mindanao (ARMM). The failure of policy of full public disclosure of all its transactions involving public the machines to read correctly some automated ballots, however, interest. deferred its implementation.3[3]

Brillantes v. comelec In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no [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. 18 additional ACMs had been acquired for that electoral exercise technical expertise necessary to meet the project‘s objectives. The because of time constraints. COMELEC bound and obliged itself to pay PMSI the sum of P298,375,808.90 as rentals for the leased equipment and for its On October 29, 2002, the COMELEC adopted, in its Resolution No. services. 02-0170, a modernization program for the 2004 elections consisting of three (3) phases, to wit: In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and prohibition in (1) PHASE I – Computerized system of registration and voters this Court for the nullification of Resolution No. 6074 approving the validation or the so-called ―biometrics‖ system of registration; 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 (2) PHASE II – Computerized voting and counting of votes; case was pending in this Court, the COMELEC paid the contract fee and to the PMSI in trenches.

(3) PHASE III – Electronic transmission of results. On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II It resolved to conduct biddings for the three phases. of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with On January 24, 2003, President Gloria Macapagal-Arroyo issued Mega Pacific Consortium for the purchase of computerized Executive Order No. 172,4[4] which allocated the sum of voting/counting machines for the purpose of implementing the P2,500,000,000 to exclusively fund the AES in time for the May 10, second phase of the modernization program. Phase II of the AES 2004 elections. 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 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 On the other hand, the validation scheme under Phase I of the AES AES with an approved budget of P2,500,000,000. 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 On February 10, 2003, upon the request of the COMELEC, President II of the AES, the COMELEC nevertheless ventured to implement Gloria Macapagal-Arroyo issued Executive Order No. 175,6[6] Phase III of the AES through an electronic transmission of advanced authorizing the release of a supplemental P500 million budget for the ―unofficial‖ results of the 2004 elections for national, provincial and AES project of the COMELEC. The said issuance, likewise, municipal positions, also dubbed as an ―unofficial quick count.‖ 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 Senate President had misgivings and process of voting, counting of votes and canvassing/consolidation of misapprehensions about the constitutionality of the proposed results of the national and local elections.‖7[7] 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 On April 15, 2003, the COMELEC promulgated Resolution No. 6074 wrote Chairman Abalos on February 2, 2004. The letter reads: 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 Dear Chairman Abalos, entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated ―ELECTRONIC TRANSMISSION, This is to confirm my opinion which I relayed to you during our CONSOLIDATION & DISSEMINATION OF ELECTION meeting on January 28th that the Commission on Elections cannot and RESULTS PROJECT CONTRACT.8[8] The contract, by its very should not conduct a ―quick count‖ on the results of the elections for terms, pertains to Phase III of the respondent COMELEC‘s AES the positions of President and Vice-President. 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 Under Section 4 of Article VII of the Constitution, it is the Congress Aperture Terminals (VSAT) each unit consisting of an indoor and that has the sole and exclusive authority to canvass the votes for outdoor equipment, to PMSI for possessing the legal, financial and 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]

19

The COMELEC approved a Resolution on February 10, 2004 Briefly, the procedure for this electronic transmission of precinct referring the letter of the Senate President to the members of the results is outlined as follows: COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had I. The NCC shall receive and consolidate all precinct results to contend with the primal problem of sourcing the money for the based on the data transmitted to it by each ETC;15[15] 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 II. Each city and municipality shall have an ETC ―where votes notwithstanding, and despite the explicit specification in the project obtained by each candidate for all positions shall be encoded, and contract for Phase III that the same was functionally intended to be an shall consequently be transmitted electronically to the NCC, through interface of Phases I and II of the AES modernization program, the Very Small Aperture Terminal (VSAT) facilities.‖16[16] For this COMELEC was determined to carry out Phase III of the AES. On purpose, personal computers shall be allocated for all cities and April 6, 2004, the COMELEC, in coordination with the project municipalities at the rate of one set for every one hundred seventy- contractor PMSI, conducted a field test of the electronic transmission five (175) precincts;17[17] of election results. III. A Department of Education (DepEd) Supervisor shall be On April 27, 2004, the COMELEC met en banc to update itself on designated in the area who will be assigned in each polling center for and resolve whether to proceed with its implementation of Phase III the purpose of gathering from all Board of Election Inspectors (BEI) of the AES.10[10] During the said meeting, COMELEC therein the envelopes containing the Copy 3 of the Election Returns Commissioner Florentino Tuason, Jr. requested his fellow (ER) for national positions and Copy 2 of the ER for local positions, Commissioners that ―whatever is said here should be confined within both intended for the COMELEC, which shall be used as basis for the the four walls of this room and the minutes so that walang encoding and transmission of advanced precinct results.18[18] masyadong problema.11[11] Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project The assailed resolution further provides that written notices of the itself, but had concerns about the budget. He opined that other funds date, time and place of the electronic transmission of advanced of the COMELEC may not be proper for realignment. precinct results shall be given not later than May 5, 2004 to Commissioners Resurreccion Z. Borra and Virgilio Garcillano also candidates running for local positions, and not later than May 7, 2004 expressed their concerns on the budget for the project. Commissioner to candidates running for national positions, as well as to political Manuel Barcelona, Jr. shared the sentiments of Commissioners parties fielding candidates, and parties, organizations/coalitions Garcillano and Tuason, Jr. regarding personnel and budgetary participating under the party-list system.19[19] problems. Commissioner Sadain then manifested that the consideration for the contract for Phase III had already been almost In relation to this, Section 13 of the assailed resolution provides that fully paid even before the Court‘s nullification of the contract for the encoding proceedings were ministerial and the tabulations were Phase II of the AES, but he was open to the possibility of the ―advanced unofficial results.‖ The entirety of Section 13, reads: 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 Sec. 13. Right to observe the ETC proceedings. – Every registered be P300,000,000 down the drain, in addition to the already allocated political party or coalition of parties, accredited political party, disbursement on Phase II of the AES.12[12] Other concerns of the sectoral party/organization or coalition thereof under the party-list, Commissioners were on the legality of the project considering the through its representative, and every candidate for national positions scrapping of Phase II of the AES, as well as the operational has the right to observe/witness the encoding and electronic constraints related to its implementation. transmission of the ERs within the authorized perimeter.

Despite the dire and serious reservations of most of its members, the Provided, That candidates for the sangguniang panlalawigan, COMELEC, the next day, April 28, 2004, barely two weeks before sangguniang panglungsod or sangguniang bayan belonging to the the national and local elections, approved the assailed resolution same slate or ticket shall collectively be entitled to only one common declaring that it ―adopts the policy that the precinct election results of observer at the ETC. each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila.‖13[13] For the The citizens‘ arm of the Commission, and civic, religious, purpose, respondent COMELEC established a National professional, business, service, youth and other similar organizations Consolidation Center (NCC), Electronic Transmission Centers collectively, with prior authority of the Commission, shall each be (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.14[14]

20 entitled to one (1) observer. Such fact shall be recorded in the Election[s]. In the process of prematurely breaking the seal of the Minutes. Board of Election Inspectors, the integrity of the Commission‘s copy is breached, thereby rendering it void of any probative value. The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in To us, it does appear that the use of election returns as prescribed in writing and, when submitted, shall be attached to the Minutes. Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, The encoding proceedings being ministerial in nature, and the the conduct of an advanced count by the COMELEC may affect the tabulations being advanced unofficial results, no objections or credibility of the elections because it will differ from the results protests shall be allowed or entertained by the ETC. 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 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 In view of the foregoing, we respectfully request the Commission to NCC.‖20[20] Instead, consolidated and per-precinct results shall be reconsider Resolution 6712 which authorizes the use of election made available via the Internet, text messaging, and electronic returns for the consolidation of the election results for the May 10, billboards in designated locations. Interested parties may print the 2004 elections.22[22] result published in the COMELEC web site.21[21] The Present Petition When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the On May 4, 2004, the petition at bar was filed in this Court. major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of the Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court Frisco San Juan of the Nationalist People‘s Coalition (NPC), Gen. their Motion to Admit Attached Petition-in-Intervention. In their Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin petition-in-intervention, movants-petitioners urge the Court to declare Drilon of the Liberal Party, and Speaker Jose de Venecia of the as null and void the assailed resolution and permanently enjoin the Lakas-Christian Muslim Democrats (CMD) and Norberto M. respondent COMELEC from implementing the same. The Court Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote granted the motion of the petitioners-in-intervention and admitted the COMELEC, on May 3, 2004 detailing their concerns about the their petition. assailed resolution: In assailing the validity of the questioned resolution, the petitioner This refers to COMELEC Resolution 6712 promulgated on 28 April avers in his petition that there is no provision under Rep. Act No. 2004. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and NAMFREL and political parties have the following concerns about a system of electronic transmission of election results (Phase III). Resolution 6712 which arose during consultation over the past Even assuming for the nonce that all the three (3) phases are duly week[:] authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. a) The Resolution disregards RA 8173, 8436, and 7166 which Consequently, considering the failed implementation of Phases I and authorize only the citizen‘s arm to use an election return for an II, there is no basis at all for the respondent COMELEC to still push unofficial count; other unofficial counts may not be based on an through and pursue with Phase III. The petitioner essentially posits election return; Indeed, it may be fairly inferred from the law that that the counting and consolidation of votes contemplated under except for the copy of the citizen‘s arm, election returns may only be Section 6 of Rep. Act No. 8436 refers to the official COMELEC used for canvassing or for receiving dispute resolutions. 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. 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 The petitioners-in-intervention point to several constitutional Commission to resolve election disputes. Only the Board of Election infractions occasioned by the assailed resolution. They advance the Inspectors is authorized to have been in contact with the return before view that the assailed resolution effectively preempts the sole and the Commission unseals it. 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 c) The instruction contained in Resolution 6712, to break the seal of respondent COMELEC to conduct an ―unofficial‖ electronic the envelope containing copies Nos. 2 and 3 will introduce a break in transmission of results of the May 10, 2004 elections, any the chain of custody prior to its opening by the Commission on expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.

21

On statutory grounds, the petitioner and petitioners-in-intervention 3. Assuming the issues are not political, whether contend that the assailed resolution encroaches upon the authority of Resolution No. 6712 is void: NAMFREL, as the citizens‘ accredited arm, to conduct the ―unofficial‖ quick count as provided under pertinent election laws. It (a) for preempting the sole and exclusive is, likewise, impugned for violating Section 52(i) of the Omnibus authority of Congress under Art. VII, Election Code, relating to the requirement of notice to the political Sec. 4 of the 1987 Constitution to parties and candidates of the adoption of technological and electronic canvass the votes for the election of devices during the elections. President and Vice-President;

For its part, the COMELEC preliminarily assails the jurisdiction of (b) for violating Art. VI, Sec. 29 (par. 1) of this Court to pass upon the assailed resolution‘s validity claiming that the 1987 Constitution that ―no money it was promulgated in the exercise of the respondent COMELEC‘s shall be paid out of the treasury except executive or administrative power. It asserts that the present in pursuance of an appropriation made controversy involves a ―political question;‖ hence, beyond the ambit by law;‖ 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 (c) for disregarding Rep. Acts Nos. 8173, resolution. 8436 and 7166 which authorize only the citizens‘ arm to use an election return for an ―unofficial‖ count; 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. (d) for violation of Sec. 52(i) of the Rather, as its bases, the respondent COMELEC invokes the general Omnibus Election Code, requiring not grant to it of the power to enforce and administer all laws relative to less than thirty (30) days notice of the the conduct of elections and to promulgate rules and regulations to use of new technological and electronic ensure free, orderly and honest elections by the Constitution, the devices; and, Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution (e) for lack of constitutional or statutory basis; and, is related to or connected with Phase III of the modernization program, no specific law is violated by its implementation. It posits 4. Whether the implementation of Resolution No. that Phases I, II and III are mutually exclusive schemes such that, 6712 would cause trending, confusion and chaos. 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 The Ruling of the Court ―unofficial‖ quick count. Among others, it invokes the general grant to it of the power ―to ensure free, orderly, honest, peaceful and The issues, as earlier defined, shall now be resolved in seriatim: credible elections.‖ Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties The Petitioners And Petitioners-In- and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of advanced election results. Intervention Possess The Locus The COMELEC trivializes as ―purely speculative‖ these constitutional concerns raised by the petitioners-in-intervention and Standi To Maintain The Present the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely Action consolidation and transmittal thereof. As such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing The gist of the question of standing is whether a party has "alleged that the project is ―unofficial‖ in nature, the COMELEC opines that it such a personal stake in the outcome of the controversy as to assure cannot, therefore, be considered as preempting or usurping the that concrete adverseness which sharpens the presentation of issues exclusive power of Congress to canvass the votes for President and upon which the court so largely depends for illumination of difficult Vice-President. constitutional questions.23[23] Since the implementation of the assailed resolution obviously involves the expenditure of funds, the The Issues petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient At the said hearing on May 8, 2004, the Court set forth the issues for interest in preventing the illegal expenditure of money raised by resolution as follows: 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 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;

22 petitioners seek to restrain the respondent from wasting public funds subject to limitations, the issue of whether the prescribed through the enforcement of an invalid or unconstitutional law.25[25] qualifications or conditions have been met or the limitations respected, is justiciable – the problem being one of legality or Most of the petitioners-in-intervention are also representatives of validity, not its wisdom.28[28] In the present petition, the Court must major political parties that have participated in the May 10, 2004 pass upon the petitioner‘s contention that Resolution No. 6712 does elections. On the other hand, petitioners-in-intervention Concepcion not have adequate statutory or constitutional basis. and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens‘ arm authorized to Although not raised during the oral arguments, another procedural conduct an ―unofficial‖ quick count during the said elections. They issue that has to be addressed is whether the substantive issues had have sufficient, direct and personal interest in the manner by which been rendered moot and academic. Indeed, the May 10, 2004 the respondent COMELEC would conduct the elections, including elections have come and gone. Except for the President and Vice- the counting and canvassing of the votes cast therein. President, the newly- elected national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to resolve the Moreover, the petitioners-in-intervention Drilon and De Venecia are, merits of the substantive issues for future guidance of both the bench respectively, President of the Senate and Speaker of the House of and bar.29[29] Further, it is settled rule that courts will decide a Representatives, the heads of Congress which is exclusively question otherwise moot and academic if it is ―capable of repetition, authorized by the Constitution to canvass the votes for President and yet evading review.‖30[30] Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress. The Respondent COMELEC

The Issue Raised By The Committed Grave Abuse Of

Petition Is Justiciable Discretion Amounting To Lack Or

Article VIII, Section 1 of the 1987 Constitution expands the concept Excess Of Jurisdiction In Issuing of judicial review by providing that: Resolution No. 6712 SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed Judicial power includes the duty of the courts of justice to settle grave abuse of discretion amounting to lack or excess of jurisdiction actual controversies involving rights which are legally demandable in promulgating the assailed resolution. and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction The Court rules in the affirmative. on the part of any branch or instrumentality of the Government. An administrative body or tribunal acts without jurisdiction if it does The Court does not agree with the posture of the respondent not have the legal power to determine the matter before it; there is COMELEC that the issue involved in the present petition is a excess of jurisdiction where the respondent, being clothed with the political question beyond the jurisdiction of this Court to review. As power to determine the matter, oversteps its authority as determined the leading case of Tañada vs. Cuenco26[26] put it, political by law.31[31] There is grave abuse of discretion justifying the questions are concerned with ―issues dependent upon the wisdom, not issuance of the writ of certiorari when there is a capricious and legality of a particular measure.‖ whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32[32] The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard First. The assailed resolution usurps, under the guise of an for applicable statutory and constitutional provisions. In other words, ―unofficial‖ tabulation of election results based on a copy of the that the petitioner and the petitioners-in-intervention are questioning election returns, the sole and exclusive authority of Congress to the legality of the respondent COMELEC‘s administrative issuance canvass the votes for the election of President and Vice-President. will not preclude this Court from exercising its power of judicial Article VII, Section 4 of the Constitution provides in part: 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

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The returns of every election for President and Vice-President duly tabulation is ―unofficial,‖ is puerile and totally unacceptable. If the certified by the board of canvassers of each province or city, shall be COMELEC is proscribed from conducting an official canvass of the transmitted to the Congress, directed to the President of the Senate. votes cast for the President and Vice-President, the COMELEC is, Upon receipt of the certificates of canvass, the President of the Senate with more reason, prohibited from making an ―unofficial‖ canvass of shall, not later than thirty days after the day of the election, open all said votes. the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon The COMELEC realized its folly and the merits of the objection of determination of the authenticity and due execution thereof in the the Senate President on the constitutionality of the resolution that it manner provided by law, canvass the votes. decided not to conduct an ―unofficial‖ quick count of the results of the elections for President and Vice-President. Commissioner Sadain As early as January 28, 2004, Senate President Franklin M. Drilon so declared during the hearing: already conveyed to Chairman Benjamin S. Abalos, Sr. his deep- seated concern that the respondent COMELEC could not and should JUSTICE PUNO: 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 The word you are saying that within 36 hours after election, more or reiterated his position emphasizing that ―any quick count to be less, you will be able to tell the people on the basis of your quick conducted by the Commission on said positions would in effect count, who won the election, is that it? constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, COMM. SADAIN: but would also be lacking of any constitutional authority.‖34[34] Well, it‘s not exactly like that, Your Honor. Because the fact of Nonetheless, in disregard of the valid objection of the Senate winning the election would really depend on the canvassed results, President, the COMELEC proceeded to promulgate the assailed but probably, it would already give a certain degree of comfort to resolution. Such resolution directly infringes the authority of certain politicians to people rather, as to who are leading in the Congress, considering that Section 4 thereof allows the use of the elections, as far as Senator down are concerned, but not to President third copy of the Election Returns (ERs) for the positions of and Vice-President. President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the JUSTICE PUNO: 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. 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? 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 COMM. SADAIN: thereof provides: In deference to the request of the Senate President and the House SEC. 24. Congress as the National Board of Canvassers for Speaker, Your Honor. According to them, they will be the ones President and Vice-President. -- The Senate and the House of canvassing and proclaiming the winner, so it is their view that we Representatives, in joint public session, shall compose the national will be pre-empting their canvassing work and the proclamation of board of canvassers for president and vice-president. The returns of the winners and we gave in to their request.35[35] 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 JUSTICE CALLEJO, [SR.]: 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 Perhaps what you are saying is that the system will minimize determination of the authenticity and the due execution thereof in the ―dagdag-bawas‖ but not totally eradicate ―dagdag-bawas‖? manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data COMM. SADAIN: storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for Yes, Your Honor. president and vice-president.

JUSTICE CALLEJO, [SR.]: The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such 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

24 voice[d] their objections to the electronic transmission results system, And you mentioned earlier something about 55 million not being paid can you share with us the objections of the two gentlemen? as yet?

COMM. SADAIN: COMM. SADAIN:

These was relayed to us Your Honor and their objection or request This is an extra amount that we will be needing to operationalize. rather was for us to refrain from consolidating and publishing the results for presidential and vice-presidential candidates which we JUSTICE VITUG: have already granted Your Honors. So, there is going to be no consolidation and no publication of the … And this has not yet been done? COMM. SADAIN: COMM. SADAIN: Reason behind being that it is actually Congress that canvass that the official canvass for this and proclaims the winner.36[36] It has not yet been done, Your Honor.

Second. The assailed COMELEC resolution contravenes the JUSTICE VITUG: constitutional provision that ―no money shall be paid out of the treasury except in pursuance of an appropriation made by Would you consider the funds that were authorized by you under the law.‖37[37] General Appropriations Act as capable of being used for this purpose? By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is ―unofficial‖ COMM. SADAIN: in character, meaning ―not emanating from or sanctioned or acknowledged by the government or government body.38[38] Any Yes, that‘s our position, Your Honor.41[41] 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 But then the COMELEC, through Commissioner Sadain, admitted its funds appropriated for the AES for the ―unofficial‖ quick count during the said hearing that although it had already approved the project may even be considered as a felony under Article 217 of the assailed resolution, it was still looking for the P55,000,000 needed to Revised Penal Code, as amended.39[39] operationalize the project:

Irrefragably, the implementation of the assailed resolution would JUSTICE CARPIO: entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and Just a clarification. You stated that you signed already the main software, among others. According to the COMELEC, it needed contract for 300 million but you have not signed the 55 million P55,000,000 to operationalize the project, including the encoding supplemental contract for the encoding? process.40[40] Hence, it would necessarily involve the disbursement of public funds for which there must be the corresponding COMM. SADAIN: appropriation.

Yes, Your Honor. 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 JUSTICE CARPIO: taken during the hearing: Because you still don‘t have the money for that? JUSTICE VITUG: 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:

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Yes.42[42] Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the Inexplicably, Commissioner Sadain contradicted himself when he lack of funds for the project, the propriety of using the funds for said that its Financial Department had already found the money, but Phase III of its modernization, and the possibility of realigning funds that proper documentation was forthcoming: to finance the project:

JUSTICE CARPIO: Comm. Tuason:

Just a clarification. You stated that you signed already the main May I just request all the parties who are in here na whatever is said contract for 300 million but you have not signed the 55 million here should be confined within the four walls of this room and the supplemental contract for the encoding? minutes so that walang masyadong problema.

COMM. SADAIN: Comm. Borra:

Yes, Your Honor. 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. JUSTICE CARPIO: Comm. Tuason: Because you still don‘t have the money for that? Commissioner Borra will submit a comment to be attached to the COMM. SADAIN: 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 Well, yes, we are trying to determine where we can secure the Phase III modernization project itself. My main concern is the money. budget. I would like to make it on record that the budget for Phase III should be taken from the modernization program fund because JUSTICE CARPIO: 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 Now, the encoding is crucial; without the encoding, the entire project used for Phase III should properly come from the modernization. collapses? 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 COMM. SADAIN: 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 Yes. they are really doing for the national elections and what they are saying is that they should not be subjected to any training anymore. JUSTICE CARPIO: 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 So, you have two (2) days to look for the 55 million, you have signed the encoders [to be fed to the encoders] for electronic transmission. I the contract on the main contract and if you don‘t get that 55 million, share the sentiments of our people in the field. That is also one of my that 300 million main contract goes to waste, because you cannot reservations. Thank you. encode? Comm. Garcillano: COMM. SADAIN: I also have my observations regarding the financial restraint that we It‘s just a matter of proper documentation, Your Honor, because I are facing if the money that is going to be used for this is taken from was informed by our Finance Department that the money is there. the Phase II, I don‘t think there is money left.

JUSTICE CARPIO: Comm. Borra:

So, you have found the money already? 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 COMM. SADAIN: for the technical working group and staff for Phase II.

Yes, Your Honor.43[43] 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

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EO and Election Assistant. I do not know if it is given to somebody ―unofficial‖ election results. What is appropriated therein is the (inaudible) amount of P225,000,000 of the capital outlay for the modernization of the electoral system. Comm. Tuason: B. PROJECTS Maintenance & Other Capital Outlays Total Operating Expenses I. Locally-Funded Projects Those are your reservations. a. For the Modernization of Electoral System

Comm. Barcelona: 225,000,000 225,000,000 b. FY 2003 Preparatory Activities for National As far as I am concerned, I also have my reservations because I have Elections the same experience as Commissioner Tuason when I went to Region 250,000,000 250,000,000 IX and Caraga. Our EOs and PES‘ expressed apprehension over the c. Upgrading of Voters‘ Database 125,000,000 125,000,000 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 d. Conduct of Special Election to additional burden on them. I also share the concern of Commissioner Tuason with regard to the budget that should be taken from the fill the vacancy in the Third District 6,500,000 6,500,000 modernization budget. of Cavite Comm. Borra: e. Implementation of Absentee

For the minutes, my memo is already prepared. I will submit it in Voting Act of 2003 (RA 9189) 300,000,000 ======300,000,000 detail. On three counts naman yan eh – legal, second is technical/operational and third is financial. ======Sub-Total, Locally-Funded Projects 681,500,000 225,000,000 300,000,00045[45] 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 Under paragraph 3 of the special provisions of Rep. Act No. 9206, been incurred in Phase III to the tune of almost 100% at the time the amount of P225,000,000 shall be used primarily for the when the Phase II contract was nullified. So if we stop the establishment of the AES prescribed under Rep. Act No. 8436, viz: 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 3. Modernization of Electoral System. The appropriations herein pesos down the drain. Necessarily there would be additional expense authorized for the Modernization of the Electoral System in the but we see this as a consequence of the loss of Phase II. I share the amount of Two Hundred Twenty-Five Million Pesos view of Comm. Tuason that as much as possible this should be taken (P225,000,000.00) shall be used primarily for the establishment of from the modernization fund as much as this is properly the automated election system, prescribed under Republic Act No. modernization concern. However, I would like to open myself to the 8436, particularly for the process of voting, counting of votes and possibility na in case wala talaga, we might explore the possibility of canvassing/consolidation of results of the national and local realigning funds although that might not …(inaudible). Now with elections.46[46] regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think the legality issue must have been Section 52 of Rep. Act No. 9206 proscribes any change or settled already as early as when we approved the modernization modification in the expenditure items authorized thereunder. Thus: program involving all three phases although we also grant the benefit of the argument for Commissioner Borra if he thinks that there is Sec. 52. Modification of Expenditure Components. Unless going to be a legal gap for the loss of Phase II. With regards the specifically authorized in this Act, no change or modification shall be concern with the Election Officers, I also share the same concern. In made in the expenditure items in this Act and other appropriations fact, on this matter alone, we try to make the GI as simple as possible laws unless in cases of augmentation from savings in appropriations so that whatever burden we will be giving to the EOs and EAs will be as authorized under Section 25(5), Article VI of the 1987 Philippine minimized. As in fact, we will be recommending that the EOs will Constitution. 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 Neither can the money needed for the project be taken from the to attend the training because there (sic) are the people who will COMELEC‘s savings, if any, because it would be violative of Article really be doing the ministerial, almost mechanical, work of encoding VI, Section 25 (5)47[47] of the 1987 Constitution. 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

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The power to augment from savings lies dormant until authorized by parties and all candidates in areas affected by the use or adoption of law.48[48] In this case, no law has, thus, far been enacted authorizing technological and electronic devices not less than thirty days prior to the respondent COMELEC to transfer savings from another item in the effectivity of the use of such devices. Section 52(i) reads: 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 SEC. 52. Powers and functions of the Commission on Elections. – In appropriating any amount for an ―unofficial‖ count and tabulation of addition to the powers and functions conferred upon it by the the votes cast during the May 10, 2004 elections: Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of CERTIFICATION elections for the purpose of ensuring free, orderly and honest elections, and shall : 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. (i) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the May 11, 2004. Pasay City, Philippines. area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited What is worrisome is that despite the concerns of the Commissioners political parties and candidates in areas affected by the use or during its En Banc meeting on April 27, 2004, the COMELEC adoption of technological and electronic devices not less than thirty nevertheless approved the assailed resolution the very next day. The days prior to the effectivity of the use of such devices. COMELEC had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence From the clear terms of the above provision, before the COMELEC of a certification of availability of funds for the project, it approved may resort to and adopt the latest technological and electronic the assailed resolution. devices for electoral purposes, it must act in accordance with the following conditions: Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens‘ arm to conduct the (a) Take into account the situation prevailing in the area and the ―unofficial‖ counting of votes. Under Section 27 of Rep. Act No. funds available for the purpose; and, 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 - (b) Notify the authorized representatives of accredited political in this case, NAMFREL - is exclusively authorized to use a copy of parties and candidates in areas affected by the use or adoption of the election returns in the conduct of an ―unofficial‖ counting of the technological and electronic devices not less than thirty days prior to votes, whether for the national or the local elections. No other entity, the effectivity of the use of such devices. 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 It is quite obvious that the purpose of this provision is to accord to all election returns, while required to be delivered to the COMELEC political parties and all candidates the opportunity to object to the under the aforementioned laws, are not intended for undertaking an effectiveness of the proposed technology and devices, and, if they are ―unofficial‖ count. The aforesaid COMELEC copies are archived so minded not to object, to allow them ample time to field their own and unsealed only when needed by the respondent COMELEC to trusted personnel especially in far flung areas and to take other verify election results in connection with resolving election disputes necessary measures to ensure the reliability of the proposed electoral that may be imminent. However, in contravention of the law, the technology or device. assailed Resolution authorizes the so-called Reception Officers (RO), to open the second or third copy intended for the respondent As earlier pointed out, the assailed resolution was issued by the COMELEC as basis for the encoding and transmission of advanced COMELEC despite most of the Commissioners‘ apprehensions ―unofficial‖ precinct results. This not only violates the exclusive regarding the legal, operational and financial impediments thereto. prerogative of NAMFREL to conduct an ―unofficial‖ count, but also More significantly, since Resolution No. 6712 was made effective taints the integrity of the envelopes containing the election returns, as immediately a day after its issuance on April 28, 2004, the well as the returns themselves, by creating a gap in its chain of respondent COMELEC could not have possibly complied with the custody from the Board of Election Inspectors to the COMELEC. thirty-day notice requirement provided under Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional Fourth. Section 52(i) of the Omnibus Election Code, which is cited right to due process of the political parties and candidates. The by the COMELEC as the statutory basis for the assailed resolution, Office of the Solicitor General (OSG) concedes this point, as it does not cover the use of the latest technological and election devices opines that ―the authorized representatives of accredited political for ―unofficial‖ tabulations of votes. Moreover, the COMELEC parties and candidates should have been notified of the adoption of failed to notify the authorized representatives of accredited political 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:

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JUSTICE CARPIO: COMM. SADAIN:

You stated that you have notified in writing all the political parties Including party list? and candidates as required in Section 52 (i)? JUSTICE CARPIO: COMM. SADAIN: But not the candidates, individual candidates? Yes, Your Honor. COMM. SADAIN: JUSTICE CARPIO: We were not able to do that, Your Honor, I must admit. Now, how many candidates are there nationwide now? JUSTICE CARPIO: COMM. SADAIN: So, you did not notify hundreds of thousands of candidates? I must admit you Honor we were not able to notify the candidates but we notified the politicians. COMM. SADAIN:

JUSTICE CARPIO: No, Your Honors.52[52]

Yes, but what does the law state? Read the law please. The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notified all political COMM. SADAIN: parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This Yes, Your Honor. I understand that it includes candidates. 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 JUSTICE CARPIO: implementation of the electronic transmission and official tabulation of election results. As correctly pointed out by the petitioners-in- And there are how many candidates nationwide running in this intervention, the invitations dated January 15, 2004 regarding the election? January 20, 2004 COMELEC Conference with the political parties on election security measures did not mention electronic transmission of COMM. SADAIN: 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 Hundreds of thousands, Your Honor. COMELEC would show a sample of the official ballot to be used in the elections, discuss various security measures that COMELEC had JUSTICE CARPIO: 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 Hundreds of thousands, so you mean you just notified the political Electronic Transmission, Consolidation and Dissemination System to parties not the candidates? 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 COMM. SADAIN: showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said invitations did Yes, Your Honor. not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus Election Code.55[55] JUSTICE CARPIO: Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body tasked to And you think that is substantial compliance, you would notify how ―enforce and administer all laws and regulations relative to the 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? 29 conduct of an election, plebiscite, initiative, referendum and for the May 10, 2004 elections, the implementation of Phase III of the recall‖56[56] and to ensure ―free, orderly, honest, peaceful and AES. credible elections‖57[57] is beyond cavil. That it possesses the power to promulgate rules and regulations in the performance of its Sixth. As correctly observed by the petitioner, there is a great constitutional duties is, likewise, undisputed. However, the duties of possibility that the ―unofficial‖ results reflected in the electronic the COMELEC under the Constitution, Rep. Act No. 7166, and other transmission under the supervision and control of the COMELEC election laws are carried out, at all times, in its official capacity. would significantly vary from the results reflected in the COMELEC There is no constitutional and statutory basis for the respondent official count. The latter follows the procedure prescribed by the COMELEC to undertake a separate and an ―unofficial‖ tabulation of Omnibus Election Code, which is markedly different from the results, whether manually or electronically. Indeed, by conducting procedure envisioned in the assailed resolution. 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 Under the Omnibus Election Code, after the votes are cast and the to conduct two kinds of electoral counts – a slow but ―official‖ count, polls closed, the Board of Election Inspectors (BEI) for each precinct and an alleged quicker but ―unofficial‖ count, the results of each may is enjoined to publicly count the votes and record the same substantially differ. 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 Clearly, the assailed resolution is an implementation of Phase III of Canvassers (MBC), which would canvass all the ERs and proclaim the modernization program of the COMELEC under Rep. Act No. the elected municipal officials. All the results in the ERs are 8436. Section 2 of the assailed resolution expressly refers to the transposed to the statements of votes (SOVs) by precinct. These Phase III-Modernization Project of the COMELEC. Since this Court SOVs are then transferred to the certificates of canvass (COCs) has already scrapped the contract for Phase II of the AES, the which are, in turn, brought to the Provincial Board of Canvassers COMELEC cannot as yet implement the Phase III of the program. (PBC). Subsequently, the PBC would canvass all the COCs from This is so provided in Section 6 of Rep. Act No. 8436. various municipalities and proclaim the elected provincial officials, including those to the House of Representatives. The PBC would SEC. 6. Authority to Use an Automated Election System. -- To carry then prepare two sets of Provincial Certificates of Canvass (PCOCs). out the above-stated policy, the Commission on Elections, herein One set is forwarded to Congress for its canvassing of the results for referred to as the Commission, is hereby authorized to use an the President and Vice-President. The other set is forwarded to the automated election system, herein referred to as the System, for the COMELEC for its canvassing of the results for Senators. process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That As the results are transposed from one document to another, and as for the May 11, 1998 elections, the System shall be applicable in all each document undergoes the procedure of canvassing by various areas within the country only for the positions of president, vice- Boards of Canvassers, election returns and certificates of canvass are president, senators and parties, organizations or coalitions objected to and at times excluded and/or deferred and not tallied, long participating under the party-list system. after the pre-proclamation controversies are resolved by the canvass boards and the COMELEC. To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any supplies, equipment, On the other hand, under the assailed resolution, the precinct results materials and services needed for the holding of the elections by an of each city and municipality received by the ETCs would be expedited process of public bidding of vendors, suppliers or lessors: immediately electronically transmitted to the NCC. Such data, which Provided, That the accredited political parties are duly notified of and have not undergone the process of canvassing, would expectedly be allowed to observe but not to participate in the bidding. If in spite of dissimilar to the data on which the official count would be based. 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 Resultantly, the official and unofficial canvass, both to be for national positions in the May 11, 1998 elections, the elections for administered by the respondent COMELEC, would most likely not both national and local positions shall be done manually except in the tally. In the past elections, the ―unofficial‖ quick count conducted by Autonomous Region in Muslim Mindanao (ARMM) where the the NAMFREL had never tallied with that of the official count of the automated election system shall be used for all positions. 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 The AES provided in Rep. Act No. 8436 constitutes the entire count, allegations of ―trending,‖ would most certainly be aggravated. ―process of voting, counting of votes and canvassing/consolidation of As a consequence, the electoral process would be undermined. 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 The only intimated utility claimed by the COMELEC for the implementation of Phase II of the AES is a condition sine qua non to ―unofficial‖ electronic transmission count is to avert the so-called the implementation of Phase III. The nullification by this Court of ―dagdag-bawas.‖ The purpose, however, as the petitioner properly the contract for Phase II of the System effectively put on hold, at least 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.

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Moreover, the Court doubts that the problem of ―dagdag-bawas‖ SIXTO S. BRILLANTES, JR., petitioner, could be addressed by the implementation of the assailed resolution. JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. It is observed that such problem arises because of the element of ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M. human intervention. In the prevailing set up, there is human DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, intervention because the results are manually tallied, appreciated, and HONESTO M. GUTIERREZ, ISLETA, AND JOSE A. canvassed. On the other hand, the electronic transmission of results BERNAS, Petitioners-in-Intervention, is not entirely devoid of human intervention. The crucial stage of vs.COMMISSION ON ELECTIONS, respondent. 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. Facts:

As it stands, the COMELEC ―unofficial‖ quick count would be but a Comelec issued resolutions adopting an Automated Elections System needless duplication of the NAMFREL ―quick‖ count, an illegal and including the assailed resolution, Resolution 6712, which provides unnecessary waste of government funds and effort. 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 Conclusion canvass the votes for President and Vice-President and would likewise encroach upon the authority of NAMFREL, as the citizens‘ The Court is mindful of the salutary goals that the respondent accredited arm, to conduct the "unofficial" quick count as provided COMELEC had envisioned in promulgating the assailed resolution, under pertinent election laws. Comelec contended that the resolution to wit: [t]o renew the public‘s confidence in the Philippine Electoral was promulgated in the exercise of its executive and administrative System by: power "to ensure free, orderly, honest, peaceful and credible elections‖ Comelec added that the issue is beyond judicial 1. Facilitating transparency in the process; determination.

2. Ensuring the integrity of the results;

3. Reducing election results manipulation; Issue:

4. Providing timely, fast and accurate information to provide Whether or not Comelec's promulgation of Resolution 6712 was the public re election results; justified.

5. Enabling the validation of its own official count and other counts;

6. Having an audit trail in its own account.58[58] Ruling:

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] The Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution 6712. The issue WHEREFORE, the petition is GRANTED. The assailed Resolution squarely fell within the ambit of the expanded jurisdiction of the No. 6712 dated April 28, 2004 issued by the Commission on court. Elections (COMELEC) En Banc is hereby declared NULL AND VOID.

SO ORDERED Article VII, Section 4 of the Constitution, further bolstered by RA 8436, vest upon Congress the sole and exclusive authority to Brillantes v. comelec digest 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 G.R. No. 163193 June 15, 2004 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 31 contrary to the provisions of the Constitution and Rep. Act No. 9206, SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, which is the 2003 General Appropriations Act. JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND , INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF The Omnibus Election Code in providing the powers and functions of NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. the Commission subjects the same to certain conditions with respect FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. to the adoption of the latest technological and electronic devices, to BIAZON, AND ALL OTHER PERSONS ACTING THEIR wit: (1)consideration of the area and available funds (2) notification CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION to all political parties and candidates. The aforementioned conditions IN RELATION TO THE VISITING FORCES AGREEMENT were found to have not been substantially met. (VFA), respondents.

Resolution 6712 was null and void. D E C I S I O N

Bayani v. Zamora BUENA, J.:

[G.R. No. 138570. October 10, 2000] Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and BAYAN (Bagong Alyansang ), a JUNK VFA borne by, an agreement forged in the turn of the last century between MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina the Republic of the Philippines and the of America -the Independiente), BISHOP ELMER BOLOCAN (United Church of Visiting Forces Agreement. Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, The antecedents unfold. GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO On March 14, 1947, the Philippines and the United States of America SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, forged a Military Bases Agreement which formalized, among others, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT the use of installations in the Philippine territory by United States , SENATOR FRANKLIN DRILON, military personnel. To further strengthen their defense and security SENATOR , SENATOR , and relationship, the Philippines and the United States entered into a SENATOR , respondents. 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] [G.R. No. 138572. October 10, 2000] In view of the impending expiration of the RP-US Military Bases PHILIPPINE CONSTITUTION ASSOCIATION, Agreement in 1991, the Philippines and the United States negotiated INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT for a possible extension of the military bases agreement. On INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, September 16, 1991, the Philippine Senate rejected the proposed RP- petitioners, vs. HON. RONALDO B. ZAMORA, as Executive US Treaty of Friendship, Cooperation and Security which, in effect, Secretary, HON. ORLANDO MERCADO, as Secretary of National would have extended the presence of US military bases in the Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Philippines.ii[2] With the expiration of the RP-US Military Bases Foreign Affairs, respondents. Agreement, the periodic military exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense [G.R. No. 138587. October 10, 2000] and security relationship between the Philippines and the United States of America continued pursuant to the Mutual Defense Treaty. TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO On July 18, 1997, the United States panel, headed by US Defense B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, the Philippine panel, headed by Foreign Affairs Undersecretary BLAS F. OPLE and RODOLFO G. BIAZON, respondents. Rodolfo Severino Jr., to exchange notes on ―the complementing strategic interests of the United States and the Philippines in the Asia- [G.R. No. 138680. October 10, 2000] 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 INTEGRATED BAR OF THE PHILIPPINES, Represented by its consolidated draft text, which in turn resulted to a final series of National President, Jose Aguila Grapilon, petitioners, vs. JOSEPH conferences and negotiationsiii[3] that culminated in Manila on EJERCITO ESTRADA, in his capacity as President, Republic of the January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos Philippines, and HON. DOMINGO SIAZON, in his capacity as approved the VFA, which was respectively signed by public Secretary of Foreign Affairs, respondents. respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998. [G.R. No. 138698. October 10, 2000] On October 5, 1998, President Joseph E. Estrada, through respondent JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA Secretary of Foreign Affairs, ratified the VFA.iv[4] QUEZON-AVENCEÑA, ROLANDO SIMBULAN, PABLITO V. 32

On October 6, 1998, the President, acting through respondent ―Article III Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines,v[5] the Instrument of Ratification, the Entry and Departure 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 ―1. The Government of the Philippines shall facilitate the Senator Blas F. Ople, and its Committee on National Defense and admission of United States personnel and their departure Security, chaired by Senator Rodolfo G. Biazon, for their joint from the Philippines in connection with activities covered consideration and recommendation. Thereafter, joint public hearings by this agreement. were held by the two Committees.vii[7] ―2. United States military personnel shall be exempt from On May 3, 1999, the Committees submitted Proposed Senate passport and visa regulations upon entering and departing Resolution No. 443viii[8] recommending the concurrence of the the Philippines. Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued. ―3. The following documents only, which shall be presented on demand, shall be required in respect of United States On May 27, 1999, Proposed Senate Resolution No. 443 was military personnel who enter the Philippines: approved by the Senate, by a two-thirds (2/3) voteix[9] of its members. Senate Resolution No. 443 was then re-numbered as ―(a) personal identity card issued by the appropriate Senate Resolution No. 18.x[10] United States authority showing full name, date of birth, rank or grade and service number (if any), On June 1, 1999, the VFA officially entered into force after an branch of service and photograph; Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard. ―(b) individual or collective document issued by the appropriate United States authority, authorizing the The VFA, which consists of a Preamble and nine (9) Articles, travel or visit and identifying the individual or provides for the mechanism for regulating the circumstances and group as United States military personnel; and conditions under which US Armed Forces and defense personnel may be present in the Philippines, and is quoted in its full text, hereunder: ―(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and ―Article I when required by the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and will certify that the Definitions aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United ―As used in this Agreement, ‗United States personnel‘ means States aircraft or United States vessels or cargoes United States military and civilian personnel temporarily in the thereon shall be conducted by the United States Philippines in connection with activities approved by the commanding officer in accordance with the Philippine Government. international health regulations as promulgated by the World Health Organization, and mutually ―Within this definition: agreed procedures.

―1. The term ‗military personnel‘ refers to military members of ―4. United States civilian personnel shall be exempt from visa the United States Army, Navy, Marine Corps, Air Force, and Coast requirements but shall present, upon demand, valid Guard. passports upon entry and departure of the Philippines.

―2. The term ‗civilian personnel‘ refers to individuals who are ―5. If the Government of the Philippines has requested the neither nationals of, nor ordinary residents in the Philippines and who removal of any United States personnel from its territory, are employed by the United States armed forces or who are the United States authorities shall be responsible for accompanying the United States armed forces, such as employees of receiving the person concerned within its own territory or the American Red Cross and the United Services Organization. otherwise disposing of said person outside of the Philippines. ―Article II ―Article IV Respect for Law Driving and Vehicle Registration ―It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any ―1. Philippine authorities shall accept as valid, without test or activity inconsistent with the spirit of this agreement, and, in fee, a driving permit or license issued by the appropriate particular, from any political activity in the Philippines. The United States authority to United States personnel for the Government of the United States shall take all measures within operation of military or official vehicles. its authority to ensure that this is done.

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―2. Vehicles owned by the Government of the United States (2) offenses arising out of any act or omission done need not be registered, but shall have appropriate markings. in performance of official duty.

―Article V (c) The authorities of either government may request the authorities of the other government to waive their Criminal Jurisdiction primary right to exercise jurisdiction in a particular case. ―1. Subject to the provisions of this article: (d) Recognizing the responsibility of the United States military authorities to maintain good order and (a) Philippine authorities shall have jurisdiction over discipline among their forces, Philippine authorities United States personnel with respect to offenses will, upon request by the United States, waive their committed within the Philippines and punishable under primary right to exercise jurisdiction except in cases of the law of the Philippines. particular importance to the Philippines. If the Government of the Philippines determines that the case (b) United States military authorities shall have the is of particular importance, it shall communicate such right to exercise within the Philippines all criminal and determination to the United States authorities within disciplinary jurisdiction conferred on them by the twenty (20) days after the Philippine authorities receive military law of the United States over United States the United States request. personnel in the Philippines. (e) When the United States military commander ―2. (a) Philippine authorities exercise exclusive determines that an offense charged by authorities of the jurisdiction over United States personnel with Philippines against United states personnel arises out of respect to offenses, including offenses relating to an act or omission done in the performance of official the security of the Philippines, punishable under duty, the commander will issue a certificate setting the laws of the Philippines, but not under the laws forth such determination. This certificate will be of the United States. transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of (b) United States authorities exercise exclusive performance of official duty for the purposes of jurisdiction over United States personnel with paragraph 3(b)(2) of this Article. In those cases where respect to offenses, including offenses relating to the Government of the Philippines believes the the security of the United States, punishable circumstances of the case require a review of the duty under the laws of the United States, but not under certificate, United States military authorities and the laws of the Philippines. Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United (c) For the purposes of this paragraph and paragraph States military authorities shall take full account of the 3 of this article, an offense relating to security Philippine position. Where appropriate, United States means: military authorities will take disciplinary or other action against offenders in official duty cases, and notify the (1) treason; Government of the Philippines of the actions taken.

(2) sabotage, espionage or violation of any (f) If the government having the primary right does not law relating to national defense. exercise jurisdiction, it shall notify the authorities of the other government as soon as possible. ―3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply: (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 (a) Philippine authorities shall have the primary right to and the United States have the right to exercise exercise jurisdiction over all offenses committed by jurisdiction. United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article. ―4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each other in the arrest of (b) United States military authorities shall have the United States personnel in the Philippines and in handling them over primary right to exercise jurisdiction over United States to authorities who are to exercise jurisdiction in accordance with the personnel subject to the military law of the United provisions of this article. States in relation to.

―5. United States military authorities shall promptly notify Philippine (1) offenses solely against the property or security authorities of the arrest or detention of United States personnel who of the United States or offenses solely against the are subject of Philippine primary or exclusive jurisdiction. Philippine property or person of United States personnel; and authorities shall promptly notify United States military authorities of the arrest or detention of any United States personnel.

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―6. The custody of any United States personnel over whom the (g) To communicate promptly with and to be visited Philippines is to exercise jurisdiction shall immediately reside with regularly by United States authorities, and to have such United States military authorities, if they so request, from the authorities present at all judicial proceedings. These commission of the offense until completion of all judicial proceedings shall be public unless the court, in proceedings. United States military authorities shall, upon formal accordance with Philippine laws, excludes persons who notification by the Philippine authorities and without delay, make have no role in the proceedings. such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with ―10. The confinement or detention by Philippine authorities of United which the person has been charged in extraordinary cases, the States personnel shall be carried out in facilities agreed on by Philippine Government shall present its position to the United States appropriate Philippine and United States authorities. United States Government regarding custody, which the United States Government Personnel serving sentences in the Philippines shall have the right to shall take into full account. In the event Philippine judicial visits and material assistance. 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 ―11. United States personnel shall be subject to trial only in one-year period will not include any time during which scheduled Philippine courts of ordinary jurisdiction, and shall not be subject to trial procedures are delayed because United States authorities, after the jurisdiction of Philippine military or religious courts. timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. ―Article VI

―7. Within the scope of their legal authority, United States and Claims Philippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing ―1. Except for contractual arrangements, including United States for the attendance of witnesses and in the collection and production foreign military sales letters of offer and acceptance and leases of of evidence, including seizure and, in proper cases, the delivery of military equipment, both governments waive any and all claims objects connected with an offense. 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 ―8. When United States personnel have been tried in civilian personnel arising from activities to which this agreement accordance with the provisions of this Article and have been applies. acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have ―2. For claims against the United States, other than contractual claims been pardoned, they may not be tried again for the same offense in and those to which paragraph 1 applies, the United States the Philippines. Nothing in this paragraph, however, shall prevent Government, in accordance with United States law regarding foreign United States military authorities from trying United States personnel claims, will pay just and reasonable compensation in settlement of for any violation of rules of discipline arising from the act or meritorious claims for damage, loss, personal injury or death, caused omission which constituted an offense for which they were tried by by acts or omissions of United States personnel, or otherwise incident Philippine authorities. to the non-combat activities of the United States forces.

―9. When United States personnel are detained, taken into ―Article VII 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 Importation and Exportation entitled: ―1. United States Government equipment, materials, supplies, and (a) To a prompt and speedy trial; 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, (b) To be informed in advance of trial of the specific taxes and other similar charges. Title to such property shall remain charge or charges made against them and to have with the United States, which may remove such property from the reasonable time to prepare a defense; Philippines at any time, free from export duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also (c) To be confronted with witnesses against them extend to any duty, tax, or other similar charges which would and to cross examine such witnesses; otherwise be assessed upon such property after importation into, or acquisition within, the Philippines. Such property may be removed (d) To present evidence in their defense and to have from the Philippines, or disposed of therein, provided that disposition compulsory process for obtaining witnesses; 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 (e) To have free and assisted legal representation of Philippine Government. their own choice on the same basis as nationals of the Philippines; ―2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel may be (f) To have the service of a competent interpreter; imported into and used in the Philippines free of all duties, taxes and and other similar charges during the period of their temporary stay in the Philippines. Transfers to persons or entities in the Philippines not 35 entitled to import privileges may only be made upon prior approval Is the VFA governed by the provisions of Section 21, Article of the appropriate Philippine authorities including payment by the VII or of Section 25, Article XVIII of the Constitution? recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The exportation of such property and of III property acquired in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and other similar charges. Does the VFA constitute an abdication of Philippine sovereignty? ―Article VIII a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel? Movement of Vessels and Aircraft b. Is the Supreme Court deprived of its jurisdiction over ―1. Aircraft operated by or for the United States armed forces offenses punishable by reclusion perpetua or higher? may enter the Philippines upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements. IV

―2. Vessels operated by or for the United States armed forces may Does the VFA violate: enter the Philippines upon approval of the Government of the Philippines. The movement of vessels shall be in accordance with a. the equal protection clause under Section 1, Article III of international custom and practice governing such vessels, and such the Constitution? agreed implementing arrangements as necessary. b. the Prohibition against nuclear weapons under Article II, ―3. Vehicles, vessels, and aircraft operated by or for the United States Section 8? 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, c. Section 28 (4), Article VI of the Constitution granting the including light and harbor dues, while in the Philippines. Aircraft exemption from taxes and duties for the equipment, materials operated by or for the United States armed forces shall observe local supplies and other properties imported into or acquired in the air traffic control regulations while in the Philippines. Vessels owned Philippines by, or on behalf, of the US Armed Forces? or operated by the United States solely on United States Government non-commercial service shall not be subject to compulsory pilotage LOCUS STANDI at Philippine ports.

―Article IX 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 Duration and Termination 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 ―This agreement shall enter into force on the date on which the of the VFA is a matter of transcendental importance which justifies parties have notified each other in writing through the their standing.xiii[13] diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement A party bringing a suit challenging the constitutionality of a law, act, shall remain in force until the expiration of 180 days from the or statute must show ―not only that the law is invalid, but also that he date on which either party gives the other party notice in has sustained or in is in immediate, or imminent danger of sustaining writing that it desires to terminate the agreement.‖ 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 Via these consolidatedxi[11] petitions for certiorari and prohibition, been, or is about to be, denied some right or privilege to which he is petitioners - as legislators, non-governmental organizations, citizens lawfully entitled, or that he is about to be subjected to some burdens and taxpayers - assail the constitutionality of the VFA and impute to or penalties by reason of the statute complained of.xiv[14] herein respondents grave abuse of discretion in ratifying the agreement. 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 We have simplified the issues raised by the petitioners into the direct injury as a result of the enforcement of the VFA. As taxpayers, following: petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending powers.xv[15] On this point, it I 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. & Do petitioners have legal standing as concerned citizens, Development Corp. vs. Laronxvii[17], we held: taxpayers, or legislators to question the constitutionality of the VFA? ―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 II 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 36 taxation and that he will sustain a direct injury as a result of the brushed aside technicalities of procedure and has taken cognizance of enforcement of the questioned statute or contract. It is not sufficient this petition. x x x‖ that he has merely a general interest common to all members of the public.‖ Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,xxiv[24] thisCourt ruled that in cases of transcendental Clearly, inasmuch as no public funds raised by taxation are involved importance, the Court may relax the standing requirements and in this case, and in the absence of any allegation by petitioners that allow a suit to prosper even where there is no direct injury to the public funds are being misspent or illegally expended, petitioners, as party claiming the right of judicial review. taxpayers, have no legal standing to assail the legality of the VFA. Although courts generally avoid having to decide a constitutional Similarly, Representatives Wigberto Tañada, Agapito Aquino and question based on the doctrine of separation of powers, which enjoins , as petitioners-legislators, do not possess the requisite upon the departments of the government a becoming respect for each locus standi to maintain the present suit. While this Court, in Phil. others‘ acts,xxv[25] this Court nevertheless resolves to take Constitution Association vs. Hon. Salvador Enriquez,xviii[18] cognizance of the instant petitions. 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 APPLICABLE CONSTITUTIONAL PROVISION 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 One focal point of inquiry in this controversy is the determination of their person or to the institution to which they belong. 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 Beyond this, the allegations of impairment of legislative power, such considering that the VFA has for its subject the presence of foreign as the delegation of the power of Congress to grant tax exemptions, military troops in the Philippines. Respondents, on the contrary, are more apparent than real. While it may be true that petitioners maintain that Section 21, Article VII should apply inasmuch as the pointed to provisions of the VFA which allegedly impair their VFA is not a basing arrangement but an agreement which involves legislative powers, petitioners failed however to sufficiently show merely the temporary visits of United States personnel engaged in that they have in fact suffered direct injury. joint military exercises.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is The 1987 Philippine Constitution contains two provisions requiring stripped of standing in these cases. As aptly observed by the Solicitor the concurrence of the Senate on treaties or international agreements. General, the IBP lacks the legal capacity to bring this suit in the Section 21, Article VII, which herein respondents invoke, reads: absence of a board resolution from its Board of Governors authorizing its National President to commence the present action.xix[19] ―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.‖ 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 Section 25, Article XVIII, provides: procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,xx[20] where we had ―After the expiration in 1991 of the Agreement between the Republic occasion to rule: of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be ―x x x ordinary citizens and taxpayers were allowed to question the allowed in the Philippines except under a treaty duly concurred in by constitutionality of several executive orders issued by President the senate and, when the Congress so requires, ratified by a majority Quirino although they were involving only an indirect and general of the votes cast by the people in a national referendum held for that interest shared in common with the public. The Court dismissed the purpose, and recognized as a treaty by the other contracting State.‖ objection that they were not proper parties and ruled that ‗transcendental importance to the public of these cases demands Section 21, Article VII deals with treatise or international agreements that they be settled promptly and definitely, brushing aside, if we in general, in which case, the concurrence of at least two-thirds (2/3) must, technicalities of procedure.‘ We have since then applied the of all the Members of the Senate is required to make the subject exception in many other cases. (Association of Small Landowners in treaty, or international agreement, valid and binding on the part of the the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).‖ Philippines. This provision lays down the general rule on treatise or (Underscoring Supplied) international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition This principle was reiterated in the subsequent cases of Gonzales vs. or tax treatise or those economic in nature. All treaties or COMELEC,xxi[21] Daza vs. Singson,xxii[22] and Basco vs. Phil. international agreements entered into by the Philippines, regardless of Amusement and Gaming Corporation,xxiii[23] where we subject matter, coverage, or particular designation or appellation, emphatically held: requires the concurrence of the Senate to be valid and effective.

―Considering however the importance to the public of the case at bar, In contrast, Section 25, Article XVIII is a special provision that and in keeping with the Court‘s duty, under the 1987 Constitution, to applies to treaties which involve the presence of foreign military determine whether or not the other branches of the government have bases, troops or facilities in the Philippines. Under this provision, the kept themselves within the limits of the Constitution and the laws and concurrence of the Senate is only one of the requisites to render that they have not abused the discretion given to them, the Court has compliance with the constitutional requirements and to consider the 37 agreement binding on the Philippines. Section 25, Article XVIII no permanent placing of structure for the establishment of a military further requires that ―foreign military bases, troops, or facilities‖ may base. On this score, the Constitution makes no distinction between be allowed in the Philippines only by virtue of a treaty duly ―transient‘ and ―permanent‖. Certainly, we find nothing in Section concurred in by the Senate, ratified by a majority of the votes cast in 25, Article XVIII that requires foreign troops or facilities to be a national referendum held for that purpose if so required by stationed or placed permanently in the Philippines. Congress, and recognized as such by the other contracting state. It is a rudiment in legal hermenuetics that when no distinction is It is our considered view that both constitutional provisions, far from made by law, the Court should not distinguish- Ubi lex non contradicting each other, actually share some common ground. These distinguit nec nos distinguire debemos. constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, In like manner, we do not subscribe to the argument that Section 25, Section 21 opens with the clause ―No treaty x x x,‖ and Section 25 Article XVIII is not controlling since no foreign military bases, but contains the phrase ―shall not be allowed.‖ Additionally, in both merely foreign troops and facilities, are involved in the VFA. instances, the concurrence of the Senate is indispensable to render the Notably, a perusal of said constitutional provision reveals that the treaty or international agreement valid and effective. proscription covers ―foreign military bases, troops, or facilities.‖ Stated differently, this prohibition is not limited to the entry of troops To our mind, the fact that the President referred the VFA to the and facilities without any foreign bases being established. The clause Senate under Section 21, Article VII, and that the Senate extended its does not refer to ―foreign military bases, troops, or facilities‖ concurrence under the same provision, is immaterial. For in either collectively but treats them as separate and independent subjects. The case, whether under Section 21, Article VII or Section 25, Article use of comma and the disjunctive word ―or‖ clearly signifies XVIII, the fundamental law is crystalline that the concurrence of the disassociation and independence of one thing from the others Senate is mandatory to comply with the strict constitutional included in the enumeration,xxviii[28] such that, the provision requirements. contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) On the whole, the VFA is an agreement which defines the treatment foreign facilities - any of the three standing alone places it under the of United States troops and personnel visiting the Philippines. It coverage of Section 25, Article XVIII. provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the To this end, the intention of the framers of the Charter, as manifested Philippine government in the matter of criminal jurisdiction, during the deliberations of the 1986 Constitutional Commission, is movement of vessel and aircraft, importation and exportation of consistent with this interpretation: equipment, materials and supplies. ―MR. MAAMBONG. I just want to address a question or two to Undoubtedly, Section 25, Article XVIII, which specifically deals Commissioner Bernas. with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited This formulation speaks of three things: foreign military bases, troops sense, however, the provisions of section 21, Article VII will find or facilities. My first question is: If the country does enter into such applicability with regard to the issue and for the sole purpose of kind of a treaty, must it cover the three-bases, troops or facilities- determining the number of votes required to obtain the valid or could the treaty entered into cover only one or two? concurrence of the Senate, as will be further discussed hereunder. FR. BERNAS. Definitely, it can cover only one. Whether it covers It is a finely-imbedded principle in statutory construction that a only one or it covers three, the requirement will be the same. 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 MR. MAAMBONG. In other words, the Philippine government sense, would include what is embraced in the former, the particular can enter into a treaty covering not bases but merely troops? enactment must be operative, and the general enactment must be taken to affect only such cases within its general language which are FR. BERNAS. Yes. not within the provision of the particular enactment.xxvi[26] MR. MAAMBONG. I cannot find any reason why the government In Leveriza vs. Intermediate Appellate Court,xxvii[27] we can enter into a treaty covering only troops. enunciated: FR. BERNAS. Why not? Probably if we stretch our imagination a ―x x x that another basic principle of statutory construction mandates little bit more, we will find some. We just want to cover that general legislation must give way to a special legislation on the everything.‖xxix[29] (Underscoring Supplied) same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. Moreover, military bases established within the territory of another Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute state is no longer viable because of the alternatives offered by new prevails over a general statute (De Jesus vs. People, 120 SCRA 760) means and weapons of warfare such as nuclear weapons, guided and that where two statutes are of equal theoretical application to a missiles as well as huge sea vessels that can stay afloat in the sea particular case, the one designed therefor specially should prevail even for months and years without returning to their home country. (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).‖ These military warships are actually used as substitutes for a land- home base not only of military aircraft but also of military personnel Moreover, it is specious to argue that Section 25, Article XVIII is and facilities. Besides, vessels are mobile as compared to a land- inapplicable to mere transient agreements for the reason that there is based military headquarters. 38

At this juncture, we shall then resolve the issue of whether or not the Having resolved that the first two requisites prescribed in Section 25, requirements of Section 25 were complied with when the Senate gave Article XVIII are present, we shall now pass upon and delve on the its concurrence to the VFA. requirement that the VFA should be recognized as a treaty by the United States of America. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are Petitioners content that the phrase ―recognized as a treaty,‖ embodied sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must in section 25, Article XVIII, means that the VFA should have the be duly concurred in by the Senate and, when so required by advice and consent of the United States Senate pursuant to its own congress, ratified by a majority of the votes cast by the people in a constitutional process, and that it should not be considered merely an national referendum; and (c) recognized as a treaty by the other executive agreement by the United States. contracting state. In opposition, respondents argue that the letter of United States There is no dispute as to the presence of the first two requisites in the Ambassador Hubbard stating that the VFA is binding on the United case of the VFA. The concurrence handed by the Senate through States Government is conclusive, on the point that the VFA is Resolution No. 18 is in accordance with the provisions of the recognized as a treaty by the United States of America. According to Constitution, whether under the general requirement in Section 21, respondents, the VFA, to be binding, must only be accepted as a Article VII, or the specific mandate mentioned in Section 25, Article treaty by the United States. XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary This Court is of the firm view that the phrase “recognized as a since Congress has not required it. treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty.xxxii[32] To require the As to the matter of voting, Section 21, Article VII particularly other contracting state, the United States of America in this case, to requires that a treaty or international agreement, to be valid and submit the VFA to the United States Senate for concurrence pursuant effective, must be concurred in by at least two-thirds of all the to its Constitution,xxxiii[33] is to accord strict meaning to the phrase. members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be “duly concurred in by the Well-entrenched is the principle that the words used in the Senate.” Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus Applying the foregoing constitutional provisions, a two-thirds vote of attached to them prevails. Its language should be understood in the all the members of the Senate is clearly required so that the sense they have in common use.xxxiv[34] concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII Moreover, it is inconsequential whether the United States treats the requires, among other things, that the treaty-the VFA, in the instant VFA only as an executive agreement because, under international case-be ―duly concurred in by the Senate,‖ it is very true however law, an executive agreement is as binding as a treaty.xxxv[35] To be that said provision must be related and viewed in light of the clear sure, as long as the VFA possesses the elements of an agreement mandate embodied in Section 21, Article VII, which in more specific under international law, the said agreement is to be taken equally as a terms, requires that the concurrence of a treaty, or international treaty. 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. 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 As noted, the ―concurrence requirement‖ under Section 25, Article a single instrument or in two or more related instruments, and XVIII must be construed in relation to the provisions of Section 21, whatever its particular designation.‖xxxvi[36] There are many other Article VII. In a more particular language, the concurrence of the terms used for a treaty or international agreement, some of which are: Senate contemplated under Section 25, Article XVIII means that at act, protocol, agreement, compromis d‟ arbitrage, concordat, least two-thirds of all the members of the Senate favorably vote to convention, declaration, exchange of notes, pact, statute, charter and concur with the treaty-the VFA in the instant case. modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under Under these circumstances, the charter provides that the Senate shall the general term treaty have little or no legal significance. Certain be composed of twenty-four (24) Senators.xxx[30] Without a tinge of terms are useful, but they furnish little more than mere doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) description.xxxvii[37] members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section Article 2(2) of the Vienna Convention provides that ―the provisions 21 of Article VII. The fact that there were actually twenty-three (23) of paragraph 1 regarding the use of terms in the present Convention incumbent Senators at the time the voting was made,xxxi[31] will not are without prejudice to the use of those terms, or to the meanings alter in any significant way the circumstance that more than two- which may be given to them in the internal law of the State.‖ 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 Thus, in international law, there is no difference between treaties and that two-thirds of the 24 Senators, or at least 16 favorable votes, executive agreements in their binding effect upon states concerned, as suffice so as to render compliance with the strict constitutional long as the negotiating functionaries have remained within their mandate of giving concurrence to the subject treaty. powers.xxxviii[38] International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.xxxix[39]

39

In our jurisdiction, we have recognized the binding effect of representative of the State has signed the treaty subject to ratification, executive agreements even without the concurrence of the Senate or or (d) the intention of the State to sign the treaty subject to Congress. In Commissioner of Customs vs. Eastern Sea ratification appears from the full powers of its representative, or was Trading,xl[40] we had occasion to pronounce: expressed during the negotiation.xliv[44]

―x x x the right of the Executive to enter into binding agreements In our jurisdiction, the power to ratify is vested in the President and without the necessity of subsequent congressional approval has been not, as commonly believed, in the legislature. The role of the Senate confirmed by long usage. From the earliest days of our history we is limited only to giving or withholding its consent, or concurrence, have entered into executive agreements covering such subjects as to the ratification.xlv[45] commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation With the ratification of the VFA, which is equivalent to final arrangements and the settlement of claims. The validity of these has acceptance, and with the exchange of notes between the Philippines never been seriously questioned by our courts. and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be ―x x x x x x x x x bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,xlvi[46] declares that the Philippines ―Furthermore, the United States Supreme Court has expressly adopts the generally accepted principles of international law as part recognized the validity and constitutionality of executive agreements of the law of the land and adheres to the policy of peace, equality, entered into without Senate approval. (39 Columbia Law Review, justice, freedom, cooperation and amity with all nations. 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 As a member of the family of nations, the Philippines agrees to be U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; bound by generally accepted rules for the conduct of its international Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. relations. While the international obligation devolves upon the state 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on and not upon any particular branch, institution, or individual member International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; of its government, the Philippines is nonetheless responsible for willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537- violations committed by any branch or subdivision of its government 540; Moore, International Law Digest, Vol. V, pp. 210-218; or any official thereof. As an integral part of the community of Hackworth, International Law Digest, Vol. V, pp. 390-407). nations, we are responsible to assure that our government, (Italics Supplied)” (Emphasis Ours) Constitution and laws will carry out our international obligation.xlvii[47] Hence, we cannot readily plead the Constitution The deliberations of the Constitutional Commission which drafted the as a convenient excuse for non-compliance with our obligations, 1987 Constitution is enlightening and highly-instructive: duties and responsibilities under international law.

―MR. MAAMBONG. Of course it goes without saying that as far as Beyond this, Article 13 of the Declaration of Rights and Duties of ratification of the other state is concerned, that is entirely their States adopted by the International Law Commission in 1949 concern under their own laws. 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 FR. BERNAS. Yes, but we will accept whatever they say. If they say an excuse for failure to perform this duty.”xlviii[48] 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] 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 The records reveal that the United States Government, through performed by them in good faith.‖ This is known as the principle of Ambassador Thomas C. Hubbard, has stated that the United States pacta sunt servanda which preserves the sanctity of treaties and have government has fully committed to living up to the terms of the been one of the most fundamental principles of positive international VFA.xlii[42] For as long as the united States of America accepts or law, supported by the jurisprudence of international tribunals.xlix[49] acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked NO GRAVE ABUSE OF DISCRETION compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the In the instant controversy, the President, in effect, is heavily faulted VFA and the concurrence of the Senate should be taken as a clear an for exercising a power and performing a task conferred upon him by unequivocal expression of our nation‘s consent to be bound by said the Constitution-the power to enter into and ratify treaties. Through treaty, with the concomitant duty to uphold the obligations and the expediency of Rule 65 of the Rules of Court, petitioners in these responsibilities embodied thereunder. 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 Ratification is generally held to be an executive act, undertaken by Constitution. 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 On this particular matter, grave abuse of discretion implies such the process of ratification of a treaty. The consent of the State to be capricious and whimsical exercise of judgment as is equivalent to bound by a treaty is expressed by ratification when: (a) the treaty lack of jurisdiction, or, when the power is exercised in an arbitrary or provides for such ratification, (b) it is otherwise established that the despotic manner by reason of passion or personal hostility, and it negotiating States agreed that ratification should be required, (c) the 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] 40

By constitutional fiat and by the intrinsic nature of his office, the and acting within the limits of such power, may not be similarly President, as head of State, is the sole organ and authority in the faulted for having simply performed a task conferred and sanctioned external affairs of the country. In many ways, the President is the by no less than the fundamental law. chief architect of the nation‘s foreign policy; his ―dominance in the field of foreign relations is (then) conceded.‖li[51] Wielding vast For the role of the Senate in relation to treaties is essentially powers an influence, his conduct in the external affairs of the nation, legislative in character;lvii[57] the Senate, as an independent body as Jefferson describes, is ―executive altogether."lii[52] possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the As regards the power to enter into treaties or international exercise of its wide latitude of discretion, pertains to the wisdom agreements, the Constitution vests the same in the President, subject rather than the legality of the act. In this sense, the Senate partakes a only to the concurrence of at least two-thirds vote of all the members principal, yet delicate, role in keeping the principles of separation of of the Senate. In this light, the negotiation of the VFA and the powers and of checks and balances alive and vigilantly ensures that subsequent ratification of the agreement are exclusive acts which these cherished rudiments remain true to their form in a democratic pertain solely to the President, in the lawful exercise of his vast government such as ours. The Constitution thus animates, through executive and diplomatic powers granted him no less than by the this treaty-concurring power of the Senate, a healthy system of fundamental law itself. Into the field of negotiation the Senate cannot checks and balances indispensable toward our nation‘s pursuit of intrude, and Congress itself is powerless to invade it.liii[53] political maturity and growth. True enough, rudimentary is the Consequently, the acts or judgment calls of the President involving principle that matters pertaining to the wisdom of a legislative act are the VFA-specifically the acts of ratification and entering into a treaty beyond the ambit and province of the courts to inquire. and those necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his constitutional powers and In fine, absent any clear showing of grave abuse of discretion on the thus, may not be validly struck down, much less calibrated by this part of respondents, this Court- as the final arbiter of legal Court, in the absence of clear showing of grave abuse of power or controversies and staunch sentinel of the rights of the people - is then discretion. without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature. For the It is the Court‘s considered view that the President, in ratifying the Constitution no less, maps out the distinct boundaries and limits the VFA and in submitting the same to the Senate for concurrence, acted metes and bounds within which each of the three political branches of within the confines and limits of the powers vested in him by the government may exercise the powers exclusively and essentially Constitution. It is of no moment that the President, in the exercise of conferred to it by law. 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, WHEREFORE, in light of the foregoing disquisitions, the instant referred the VFA to the Senate for concurrence under the petitions are hereby DISMISSED. 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 SO ORDERED. the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. In doing Bayani v. Zamora digest so, the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. Even Case Digest: G.R. No. 138570. October 10, 2000. 342 SCRA 449 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 BAYAN (Bagong Alyansang Makabayan), a Junk VFA Movement, faulted or scarred, much less be adjudged guilty of committing an Bishop Tomas Millamena (Iglesia Filipina Independiente), Bishop abuse of discretion in some patent, gross, and capricious manner. 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, For while it is conceded that Article VIII, Section 1, of the petitioners, vs. Executive Secretary Ronaldo Zamora, Foreign Affairs Constitution has broadened the scope of judicial inquiry into areas Secretary Domingo Siazon, Defense Secretary Orlando Mercado, normally left to the political departments to decide, such as those Brig. Gen. Alexander Aguirre, Senate President Marcelo Fernan, relating to national security, it has not altogether done away with Senator Franklin Drilon, Senator Blas Ople, Senator Rodolfo Biazon, political questions such as those which arise in the field of foreign And Senator Francisco Tatad, respondents. 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 Facts: On March 14, 1947, the Philippines and the United States of to lack of jurisdiction, there is no occasion for the Court to exercise America forged a Military Bases Agreement which formalized, its corrective power…It has no power to look into what it thinks is among others, the use of installations in the Philippine territory by apparent error.”lv[55] United States military personnel. In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and As to the power to concur with treaties, the constitution lodges the the United States negotiated for a possible extension of the military same with the Senate alone. Thus, once the Senatelvi[56] performs bases agreement. On September 16, 1991, the Philippine Senate that power, or exercises its prerogative within the boundaries rejected the proposed RP-US Treaty of Friendship, Cooperation and prescribed by the Constitution, the concurrence cannot, in like Security which, in effect, would have extended the presence of US manner, be viewed to constitute an abuse of power, much less grave military bases in the Philippines. On July 18, 1997, the United States abuse thereof. Corollarily, the Senate, in the exercise of its discretion panel, headed by US Defense Deputy Assistant Secretary for Asia 41

Pacific Kurt Campbell, met with the Philippine panel, headed by Joseph ―Erap‖ Estrada alleges that he is the President on leave while Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange Gloria Macapagal-Arroyo claims she is the President. From the notes on ―the complementing strategic interests of the United States beginning of Erap‘s term, he was plagued by problems that slowly and the Philippines in the Asia-Pacific region.‖ Both sides discussed, but surely eroded his popularity. His sharp descent from power among other things, the possible elements of the Visiting Forces started on October 4, 2000. Singson, a longtime friend of Estrada, Agreement (VFA for brevity). Thereafter, then President Fidel V. went on air and accused the Estrada, his family and friends of Ramos approved the VFA, which was respectively signed by public receiving millions of pesos from jueteng lords. The exposé respondent Secretary Siazon and Unites States Ambassador Thomas immediately ignited reactions of rage. On January 19, Estrada fell Hubbard. On October 5, 1998, President Joseph E. Estrada, through from power. At 1:20 p.m. of said day, the Erap informed then respondent Secretary of Foreign Affairs, ratified the VFA. On Executive Secretary that General Angelo Reyes, October 6, 1998, the President, acting through respondent Executive Chief of Staff of the Armed Forces of the Philippines, had defected. Secretary Ronaldo Zamora, officially transmitted to the Senate of the January 20 turned to be the day of Erap‘s surrender. On January 22, Philippines, the Instrument of Ratification, the letter of the President the Monday after taking her oath, Arroyo immediately discharged the and the VFA, for concurrence pursuant to Section 21, Article VII of powers and duties of the Presidency. After his fall from the pedestal the 1987 Constitution 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.

Issues (justiciable controversy): (1) Whether or not petitioners have ISSUE: Whether or not Arroyo is a legitimate (de jure) president. legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA; (2) whether the VFA is HELD: The SC holds that the resignation of Estrada cannot be governed by the provisions of Section 21, Article VII or of Section doubted. It was confirmed by his leaving Malacañang. In the press 25, Article XVIII of the Constitution; (3) and whether or not the release containing his final statement, (1) he acknowledged the oath- Supreme Court has jurisdiction. 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 Ruling: (1) No. Petitioners failed to show that they have sustained, or to re-assume the presidency as soon as the disability disappears; (3) are in danger of sustaining any direct injury as a result of the he expressed his gratitude to the people for the opportunity to serve enforcement of the VFA. As taxpayers, petitioners have not them. Without doubt, he was referring to the past opportunity given established that the VFA involves the exercise by Congress of its him to serve the people as President; (4) he assured that he will not taxing or spending powers. On this point, it bears stressing that a shirk from any future challenge that may come ahead in the same taxpayer‘s suit refers to a case where the act complained of directly service of our country. Estrada‘s reference is to a future challenge involves the illegal disbursement of public funds derived from after occupying the office of the president which he has given up; and taxation. (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 (2) Yes.The fact that the President referred the VFA to the Senate petitioner‘s valedictory, his final act of farewell. His presidency is under Section 21, Article VII, and that the Senate extended its now in the past tense. Even if Erap can prove that he did not resign, concurrence under the same provision, is immaterial. For in either still, he cannot successfully claim that he is a President on leave on case, whether under Section 21, Article VII or Section 25, Article the ground that he is merely unable to govern temporarily. That XVIII, the fundamental law is crystalline that the concurrence of the claim has been laid to rest by Congress and the decision that Senate is mandatory to comply with the strict constitutional respondent Arroyo is the de jure President made by a co-equal branch requirements. of government cannot be reviewed by this Court.

Phil judges assoc v prado

(3) No. In fine, absent any clear showing of grave abuse of discretion Republic of the Philippines on the part of respondents, the Court as the final arbiter of legal SUPREME COURT controversies and staunch sentinel of the rights of the people is then Manila without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature. For the EN BANC Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of G.R. No. 105371 November 11, 1993 government may exercise the powers exclusively and essentially conferred to it by law. THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P. ABESAMIS, Vice-President for Legal Estrada v. dessierto digest Affairs, MARIANO M. UMALI, Director for Pasig, Makati, and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of 353 SCRA 452 – Political Law – Constitutional Law – De Jure vs De the Committee on Legal Aid, JESUS G. BERSAMIRA, Presiding Facto President – Arroyo a de jure president Judges of the Regional Trial Court, Branch 85, and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: 42 the NATIONAL CONFEDERATION OF THE JUDGES embrace only one subject which shall be expressed in the title ASSOCIATION OF THE PHILIPPINES, composed of the thereof.‖ METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its President. REINATO QUILALA of the MUNICIPAL The purposes of this rule are: (1) to prevent hodge-podge or ―log- TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL rolling‖ legislation; (2) to prevent surprise or fraud upon the JUDGES LEAGUE OF THE PHILIPPINES rep. by its legislature by means of provisions in bills of which the title gives no President, TOMAS G. TALAVERA; by themselves and in behalf intimation, and which might therefore be overlooked and carelessly of all the Judges of the Regional Trial and Shari’a Courts, and unintentionally adopted; and (3) to fairly apprise the people, Metropolitan Trial Courts and Municipal Courts throughout the through such publication of legislative proceedings as is usually Country, petitioners, made, of the subject of legislation that is being considered, in order vs. that they may have opportunity of being heard thereon, by petition or HON. PETE PRADO, in his capacity as Secretary of the otherwise, if they shall so desire. 1 Department of Transportation and Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the PHILIPPINE POSTAL CORP., respondents. 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. CRUZ, J.: R.A. No. 7354 is entitled ―An Act Creating the Philippine Postal The basic issue raised in this petition is the independence of the Corporation, Defining its Powers, Functions and Responsibilities, Judiciary. It is asserted by the petitioners that this hallmark of Providing for Regulation of the Industry and for Other Purposes republicanism is impaired by the statute and circular they are here Connected Therewith.‖ 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 The objectives of the law are enumerated in Section 3, which cannot inhibit itself and must rule upon the challenge, because no provides: other office has the authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge of an The State shall pursue the following objectives of a nationwide postal unavoidable duty and, as always, with detachment and fairness. system:

The main target of this petition is Section 35 of R.A. No. 7354 as a) to enable the economical and speedy transfer of mail and other implemented by the Philippine Postal Corporation through its postal matters, from sender to addressee, with full recognition of their Circular No. 92-28. These measures withdraw the franking privilege privacy or confidentiality; from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts, b) to promote international interchange, cooperation and and the Land Registration Commission and its Registers of Deeds, understanding through the unhampered flow or exchange of postal along with certain other government offices. matters between nations;

The petitioners are members of the lower courts who feel that their c) to cause or effect a wide range of postal services to cater to official functions as judges will be prejudiced by the above-named different users and changing needs, including but not limited to, measures. The National Land Registration Authority has taken philately, transfer of monies and valuables, and the like; 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. 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 The petition assails the constitutionality of R.A. No. 7354 on the and continuous upgrading of service standards by the same. 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 Sec. 35 of R.A. No. 7354, which is the principal target of the petition, form were not distributed among the members before its passage; and reads as follows: (3) it is discriminatory and encroaches on the independence of the Judiciary. Sec. 35. Repealing Clause. — All acts, decrees, orders, executive orders, instructions, rules and regulations or parts thereof inconsistent We approach these issues with one important principle in mind, to with the provisions of this Act are repealed or modified accordingly. wit, the presumption of the constitutionality of statutes. The theory is that as the joint act of the Legislature and the Executive, every statute All franking privileges authorized by law are hereby repealed, except is supposed to have first been carefully studied and determined to be those provided for under Commonwealth Act No. 265, Republic Acts constitutional before it was finally enacted. Hence, unless it is clearly Numbered 69, 180, 1414, 2087 and 5059. The Corporation may shown that it is constitutionally flawed, the attack against its validity continue the franking privilege under Circular No. 35 dated October must be rejected and the law itself upheld. To doubt is to sustain. 24, 1977 and that of the Vice President, under such arrangements and conditions as may obviate abuse or unauthorized use thereof. I The petitioners‘ contention is untenable. We do not agree that the title We consider first the objection based on Article VI, Sec. 26(l), of the of the challenged act violates the Constitution. Constitution providing that ―Every bill passed by the Congress shall 43

The title of the bill is not required to be an index to the body of the the vote thereon shall be taken immediately thereafter, and act, or to be as comprehensive as to cover every single detail of the the yeas and nays entered in the Journal. 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 The petitioners also invoke Sec. 74 of the Rules of the House of calculated to mislead the legislature or the people, there is sufficient 2 Representatives, requiring that amendment to any bill when the compliance with the constitutional requirement. House and the Senate shall have differences thereon may be settled by a conference committee of both chambers. They stress that Sec. 35 To require every end and means necessary for the accomplishment of was never a subject of any disagreement between both Houses and so the general objectives of the statute to be expressed in its title would the second paragraph could not have been validly added as an not only be unreasonable but would actually render legislation amendment. impossible. 3As has been correctly explained: These argument are unacceptable. 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 While it is true that a conference committee is the mechanism for adopted to the accomplishment of the object in view, may properly be compromising differences between the Senate and the House, it is not included in the act. Thus, it is proper to create in the same act the limited in its jurisdiction to this question. Its broader function is machinery by which the act is to be enforced, to prescribe the described thus: 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 A conference committee may, deal generally with the subject matter special mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. or it may be limited to resolving the precise differences between the 725). 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 This is particularly true of the repealing clause, on which Cooley conference bill. But occasionally a conference committee produces writes: ―The repeal of a statute on a given subject is properly unexpected results, results beyond its mandate, These excursions connected with the subject matter of a new statute on the same occur even where the rules impose strict limitations on conference subject; and therefore a repealing section in the new statute is valid, committee jurisdiction. This is symptomatic of the authoritarian notwithstanding that the title is silent on the subject. It would be power of conference committee (Davies, Legislative Law and difficult to conceive of a matter more germane to an act and to the Process: In a Nutshell, 1986 Ed., p.81). object to be accomplished thereby than the repeal of previous legislations connected therewith.‖ 4 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 The reason is that where a statute repeals a former law, such repeal is and the House of Representatives. Thereafter, the bill was enrolled the effect and not the subject of the statute; and it is the subject, not with its certification by Senate President Neptali A. Gonzales and the effect of a law, which is required to be briefly expressed in its 5 6 Speaker Ramon V. Mitra of the House of Representatives as having title. As observed in one case, if the title of an act embraces only been duly passed by both Houses of Congress. It was then presented one subject, we apprehend it was never claimed that every other act to and approved by President Corazon C. Aquino on April 3, 1992. 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. 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. We are convinced that the withdrawal of the franking privilege from Gimenez 7 laid down the rule that the enrolled bill, is conclusive upon some agencies is germane to the accomplishment of the principal the Judiciary (except in matters that have to be entered in the journals objective of R.A. No. 7354, which is the creation of a more efficient like the yeas and nays on the final reading of the bill). 8The journals and effective postal service system. Our ruling is that, by virtue of its are themselves also binding on the Supreme Court, as we held in the nature as a repealing clause, Section 35 did not have to be expressly old (but still valid) case of U.S. vs. Pons, 9where we explained the included in the title of the said law. reason thus:

II To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would The petitioners maintain that the second paragraph of Sec. 35 be to violate both the, letter and spirit of the organic laws by which covering the repeal of the franking privilege from the petitioners and the Philippine Government was brought into existence, to invade a this Court under E.O. 207, PD 1882 and PD 26 was not included in coordinate and independent department of the Government, and to the original version of Senate Bill No. 720 or House Bill No. 4200. interfere with the legitimate powers and functions, of the Legislature. As this paragraph appeared only in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of the Applying these principles, we shall decline to look into the Constitution, reading as follows: petitioners‘ charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that (2) No bill passed by either House shall become a law unless it has copies thereof in its final form were not distributed among the passed three readings on separate days, and printed copies thereof in members of each House. Both the enrolled bill and the legislative its final form have been distributed to its Members three days before journals certify that the measure was duly enacted i.e., in accordance its passage, except when the President certifies to the necessity of its with Article VI, Sec. 26(2) of the Constitution. We are bound by such immediate enactment to meet a public calamity or emergency. Upon official assurances from a coordinate department of the government, the last reading of a bill, no amendment thereto shall be allowed, and to which we owe, at the very least, a becoming courtesy. 44

III however, that not enough care or attention was given to its repealing clause, resulting in the unwitting withdrawal of the franking privilege The third and most serious challenge of the petitioners is based on the from the Judiciary. equal protection clause. We also do not believe that the basis of the classification was mere It is alleged that R.A. No. 7354 is discriminatory because while courtesy, for it is unimaginable that the political departments would withdrawing the franking privilege from the Judiciary, it retains the have intended this serious slight to the Judiciary as the third of the same for the President of the Philippines, the Vice President of the major and equal departments the government. The same observations Philippines; Senators and Members of the House of Representatives, are made if the importance or status of the grantee was the criterion the Commission on Elections; former Presidents of the Philippines; used for the extension of the franking privilege, which is enjoyed by the National Census and Statistics Office; and the general public in the National Census and Statistics Office and even some private the filing of complaints against public offices and officers. 10 individuals but not the courts of justice.

The respondents counter that there is no discrimination because the In our view, the only acceptable reason for the grant of the franking law is based on a valid classification in accordance with the equal privilege was the perceived need of the grantee for the protection clause. In fact, the franking privilege has been withdrawn accommodation, which would justify a waiver of substantial revenue not only from the Judiciary but also the Office of Adult Education, by the Corporation in the interest of providing for a smoother flow of the Institute of National Language; the Telecommunications Office; communication between the government and the people. the Philippine Deposit Insurance Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed Forces Assuming that basis, we cannot understand why, of all the of the Philippines Ladies Steering Committee; the City and departments of the government, it is the Judiciary, that has been Provincial Prosecutors; the Tanodbayan (Office of Special denied the franking privilege. There is no question that if there is any Prosecutor); the Kabataang Barangay; the Commission on the major branch of the government that needs the privilege, it is the Filipino Language; the Provincial and City Assessors; and the Judicial Department, as the respondents themselves point out. National Council for the Welfare of Disabled Persons. 11 Curiously, the respondents would justify the distinction on the basis precisely of this need and, on this basis, deny the Judiciary the The equal protection of the laws is embraced in the concept of due franking privilege while extending it to others less deserving. process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate In their Comment, the respondents point out that available data from clause in Article III Sec. 1., of the Constitution to provide for a more, the Postal Service Office show that from January 1988 to June 1992, specific guaranty against any form of undue favoritism or hostility the total volume of frank mails amounted to P90,424,175.00. Of this from the government. Arbitrariness in general may be challenged on amount, frank mails from the Judiciary and other agencies whose the basis of the due process clause. But if the particular act assailed functions include the service of judicial processes, such as the partakes of an unwarranted partiality or prejudice, the sharper intervenor, the Department of Justice and the Office of the weapon to cut it down is the equal protection clause. Ombudsman, amounted to P86,481,759. Frank mails coming fromthe Judiciary amounted to P73,574,864.00, and those coming from the According to a long line of decisions, equal protection simply petitioners reached the total amount of P60,991,431.00. The requires that all persons or things similarly situated should be treated respondents‘ conclusion is that because of this considerable volume alike, both as to rights conferred and responsibilities of mail from the Judiciary, the franking privilege must be withdrawn imposed, 12Similar subjects, in other words, should not be treated from it. differently, so as to give undue favor to some and unjustly discriminate against others. The argument is self-defeating. The respondents are in effect saying that the franking privilege should be extended only to those who do The equal protection clause does not require the universal application not need it very much, if at all, (like the widows of former Presidents) of the laws on all persons or things without distinction. This might in but not to those who need it badly (especially the courts of justice). It fact sometimes result in unequal protection, as where, for example, a is like saying that a person may be allowed cosmetic surgery law prohibiting mature books to all persons, regardless of age, would although it is not really necessary but not an operation that can save benefit the morals of the youth but violate the liberty of adults. What his life. the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of If the problem of the respondents is the loss of revenues from the persons or things similar to each other in certain particulars and franking privilege, the remedy, it seems to us, is to withdraw it different from all others in these same particulars. 13 altogether from all agencies of government, including those who do not need it. The problem is not solved by retaining it for some and What is the reason for the grant of the franking privilege in the first withdrawing it from others, especially where there is no substantial place? Is the franking privilege extended to the President of the distinction between those favored, which may or may not need it at Philippines or the Commission on Elections or to former Presidents all, and the Judiciary, which definitely needs it. The problem is not of the Philippines purely as a courtesy from the lawmaking body? Is solved by violating the Constitution. it offered because of the importance or status of the grantee or because of its need for the privilege? Or have the grantees been In lumping the Judiciary with the other offices from which the chosen pell-mell, as it were, without any basis at all for the selection? franking privilege has been withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong. If it We reject outright the last conjecture as there is no doubt that the recognizes the need of the President of the Philippines and the statute as a whole was carefully deliberated upon, by the political members of Congress for the franking privilege, there is no reason departments before it was finally enacted. There is reason to suspect, why it should not recognize a similar and in fact greater need on the 45 part of the Judiciary for such privilege. While we may appreciate the as violative of Article 3, Sec. 1, of the Constitution providing that no withdrawal of the franking privilege from the Armed Forces of the person shall ―be deprived of the equal protection of laws.‖ Philippines Ladies Steering Committee, we fail to understand why the Supreme Court should be similarly treated as that Committee. We arrive at these conclusions with a full awareness of the criticism And while we may concede the need of the National Census and it is certain to provoke. While ruling against the discrimination in this Statistics Office for the franking privilege, we are intrigued that a case, we may ourselves be accused of similar discrimination through similar if not greater need is not recognized in the courts of justice. the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however undeserved, is a (On second thought, there does not seem to be any justifiable need fact of life in the political system that we are prepared to accept.. As for withdrawing the privilege from the Armed Forces of the judges, we cannot debate with our detractors. We can only decide the Philippines Ladies Steering Committee, which, like former Presidents cases before us as law imposes on us the duty to be fair and our own of the Philippines or their widows, does not send as much frank mail conscience gives us the light to be right. as the Judiciary.) ACCORDINGLY, the petition is partially GRANTED and Section It is worth observing that the Philippine Postal Corporation, as a 35 of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular government-controlled corporation, was created and is expected to No. 92-28 is SET ASIDE insofar as it withdraws the franking operate for the purpose of promoting the public service. While it may privilege from the Supreme Court, the Court of Appeals, the Regional have been established primarily for private gain, it cannot excuse trail Courts, the Municipal trial Courts, and the National Land itself from performing certain functions for the benefit of the public Registration Authority and its Register of Deeds to all of which in exchange for the franchise extended to it by the government and offices the said privilege shall be RESTORED. The temporary the many advantages it enjoys under its charter. 14 Among the restraining order dated June 2, 1992, is made permanent. services it should be prepared to extend is free carriage of mail for certain offices of the government that need the franking privilege in SO ORDERED. the discharge of their own public functions. Phil judges assoc v prado digest 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 Equal Protection” – Franking Privilege of the Judiciary 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 A report came in showing that available data from the Postal Service cripple the Corporation. 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 At this time when the Judiciary is being faulted for the delay in the from the Judiciary and other agencies whose functions include the administration of justice, the withdrawal from it of the franking service of judicial processes, such as the intervenor, the Department privilege can only further deepen this serious problem. The volume of Justice and the Office of the Ombudsman, amounted to of judicial mail, as emphasized by the respondents themselves, P86,481,759. Frank mails coming from the Judiciary amounted to should stress the dependence of the courts of justice on the postal P73,574,864.00, and those coming from the petitioners reached the service for communicating with lawyers and litigants as part of the total amount of P60,991,431.00. The postmaster‘s conclusion is that judicial process. The Judiciary has the lowest appropriation in the because of this considerable volume of mail from the Judiciary, the national budget compared to the Legislative and Executive franking privilege must be withdrawn from it. Acting from this, Departments; of the P309 billion budgeted for 1993, only .84%, or Prado implemented Circ. No. 9228 as the IRR for the said law. PJA less than 1%, is alloted for the judiciary. It should not be hard to assailed the said law complaining that the law would adversely imagine the increased difficulties of our courts if they have to affix a impair the communication within the judiciary as it may impair the purchased stamp to every process they send in the discharge of their sending of judicial notices. PJA averred that the law is discriminatory judicial functions. 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. 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 ISSUE: Whether or not there has been a violation of equal protection to be a discriminatory provision that denies the Judiciary the equal before the law. protection of the laws guaranteed for all persons or things similarly situated. The distinction made by the law is superficial. It is not based HELD: The SC ruled that there is a violation of the equal protection on substantial distinctions that make real differences between the clause. The judiciary needs the franking privilege so badly as it is Judiciary and the grantees of the franking privilege. vital to its operation. Evident to that need is the high expense allotted to the judiciary‘s franking needs. The Postmaster cannot be sustained This is not a question of wisdom or power into which the Judiciary in contending that the removal of the franking privilege from the may not intrude. It is a matter of arbitrariness that this Court has the judiciary is in order to cut expenditure. This is untenable for if the duty and power to correct. 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 IV problem of the respondents is the loss of revenues from the franking privilege, the remedy is to withdraw it altogether from all agencies of In sum, we sustain R.A. No. 7354 against the attack that its subject is the government, including those who do not need it. The problem is not expressed in its title and that it was not passed in accordance with not solved by retaining it for some and withdrawing it from others, the prescribed procedure. However, we annul Section 35 of the law especially where there is no substantial distinction between those 46 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.

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