4.

DISQUALIFICATIONS
INCOMPATIBLE OFFICES (1ST SENTENCE)
FORBIDDEN OFFICES (2ND SENTENCE)
ARTICLE VI. Section 13. No Senator or Member of the House of Representatives may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the
emoluments thereof increased during the term for which he was elected.
5. ELECTORAL TRIBUNALS
ARTICLE VI. Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of
all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members
of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
CASE: BONDOC VS PINEDA, GR NO. 97710, SEPT 26, 1991
EN BANC
G.R. No. 97710 September 26, 1991
DR. EMIGDIO A. BONDOC, petitioner,
vs.
REPRESENTATIVES MARCIANO M. PINEDA, MAGDALENO M. PALACOL, COL. JUANITO G. CAMASURA, JR.,
or any other representative who may be appointed vice representative Juanita G. Camasura, Jr., and
THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, respondents.

GRIO-AQUIO, J.:p
This case involves a question of power. May the House of Representatives, at the request of the dominant political
party therein, change that party's representation in the House Electoral Tribunal to thwart the promulgation of a
decision freely reached by the tribunal in an election contest pending therein? May the Supreme Court review and
annul that action of the House?
Even the Supreme Court of the United States over a century ago, in Marbury vs. Madison, 2 L. ed. 60 (1803), had
hesitated to embark upon a legal investigation of the acts of the other two branches of the Government, finding it
"peculiarly irksome as well as delicate" because it could be considered by some as "an attempt to intrude" into the
affairs of the other two and to intermeddle with their prerogatives.
In the past, the Supreme Court, as head of the third and weakest branch of our Government, was all too willing to
avoid a political confrontation with the other two branches by burying its head ostrich-like in the sands of the
"political question" doctrine, the accepted meaning of which is that 'where the matter involved is left to a decision
by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or
executive branch of the government, it is beyond judicial cognizance. Thus it was that in suits where the party
proceeded against was either the President or Congress, or any of its branches for that matter, the courts refused
to act." (Aquino vs. Ponce Enrile, 59 SCRA 183, 196.)
In time, however, the duty of the courts to look into the constitutionality and validity of legislative or executive
action, especially when private rights are affected came to be recognized. As we pointed out in the celebrated
Aquino case, a showing that plenary power is granted either department of government may not be an obstacle to
judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since
"a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be
done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain
whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus
posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld"
(Aquino vs. Ponce Enrile, 59 SCRA 183, 196).
That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the
1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts 'to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government."
The power and duty of the courts to nullify in appropriate cases, the actions of the executive and legislative
branches of the Government, does not mean that the courts are superior to the President and the Legislature. It
does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and

legality of legislative or executive action when a justiciable controversy is brought before the courts by someone
who has been aggrieved or prejudiced by such action, as in this case. It is
a plain exercise of the judicial power, that power vested in courts to enable them to administer
justice according to law. ... It is simply a necessary concomitant of the power to hear and dispose of
a case or controversy properly before the court, to the determination of which must be brought the
test and measure of the law. (Vera vs. Avelino, 77 Phil. 192, 203.)
In the local and congressional elections held on May 11, 1987, Marciano M. Pineda of the Laban ng Demokratikong
Pilipino (LDP) and Dr. Emigdio A. Bondoc of the Nacionalista Party (NP) were rival candidates for the position of
Representative for the Fourth District of the province of Pampanga. Each received the following votes in the
canvass made by the Provincial Board of Canvassers of Pampanga:
Marciano M. Pineda.................... 31,700 votes
Emigdio A. Bondoc..................... 28,400 votes
Difference...................................... 3,300 votes
On May 19, 1987, Pineda was proclaimed winner in the election. In due time, Bondoc filed a protest (HRET Case No.
25) in the House of Representatives Electoral Tribunal ( for short) which is composed of nine (9) members, three of
whom are Justices of the Supreme Court and the remaining six are members of the House of Representatives
chosen on the basis of proportional representation from the political parties and the parties or organizations
registered under the party-list system represented therein (Sec. 17, Art. VI, 1987 Constitution) as follows:
***************************************************
After the revision of the ballots, the presentation of evidence, and submission of memoranda, Bondoc's protest was
submitted for decision in July, 1989.
By October 1990, a decision had been reached in which Bondoc won over Pineda by a margin of twenty-three (23)
votes. At that point, the LDP members in the Tribunal insisted on a reappreciation and recount of the ballots cast in
some precincts, thereby delaying by at least four (4) months the finalization of the decision in the case.
The reexamination and re-appreciation of the ballots resulted in increasing Bondoc's lead over Pineda to 107 votes.
Congressman Camasura voted with the Supreme Court Justices and Congressman Cerilles to proclaim Bondoc the
winner of the contest.
Moved by candor and honesty, Congressman Camasura revealed on March 4, 1991, to his 'Chief," Congressman
Jose S. Cojuangco, Jr., LDP Secretary General, not only the final tally in the Bondoc case but also that he voted for
Bondoc "consistent with truth and justice and self- respect," and to honor a "gentlemen's agreement" among the
members of the HRET that they would "abide by the result of the appreciation of the contested
ballot 1Congressman Camasura's revelation stirred a hornets' nest in the LDP which went into a flurry of plotting
appropriate moves to neutralize the pro-Bondoc majority in the Tribunal.
On March 5, 1991, the HRET issued a Notice of Promulgation of Decision on March 14, 1991 at 2:30 P.M. in HRET
Case No. 25. A copy of the notice was received by Bondoc's counsel on March 6, 1991.
On March 13, 1991, the eve of the promulgation of the Bondoc decision, Congressman Cojuangco informed
Congressman Camasura by letter 2 that on February 28, 1991 yet, the LDP Davao del Sur Chapter at Digos, Davao
del Sur, by Resolution No. 03-91 had already expelled him and Congressman Benjamin Bautista from the LDP for
having allegedly helped to organize the Partido Pilipino of Eduardo "Danding" Cojuangco, and for allegedly having
invited LDP members in Davao del Sur to join said political party; and that as those acts are "not only inimical
uncalled for, unethical and immoral, but also a complete betrayal to (sic) the cause and objectives, and loyalty to
LDP," in a meeting on March 12, 1991, the LDP Executive Committee unanimously confirmed the expulsions. 3
At the same time, Congressman Cojuangco notified Speaker Ramon V. Mitra about the ouster of the two
congressmen from the LDP, and asked the House of Representatives, through the Speaker, to take note of it
'especially in matters where party membership is a prerequisite. 4
At 9:45 in the morning of March 4, 1991, the Chairman of the Tribunal, Mme. Justice Armeurfina M. Herrera,
received the following letter dated March 13, 1991, from the Office of the Secretary General of the House of
Representatives, informing the Tribunal that on the basis of the letter from the LDP, the House of Representatives,
during its plenary session on March 13, 1991, decided to withdraw the nomination and rescind the election of
Congressman Camasura, Jr. to the House of Electoral Tribunal. The letter reads as follows:
13 March 1991
Honorable Justice Ameurfina Melencio-Herrera Chairman
House of Representatives Electoral Tribunal Constitution Hills Quezon City
Dear Honorable Justice Melencio-Herrera:
I have the honor to notify the House of Electoral Tribunal of the decision of the House of
Representatives during its plenary session on 13 March 1991, to withdraw the nomination and to
rescind the election of the Honorable Juanito G. Camasura, Jr. to the House Electoral Tribunal on the
basis of an LDP communication which is self-explanatory and copies of which are hereto attached.
Thank you.
For the Secretary-General
(SGD.) Josefina D. Azarcon Officer-in-charge Operations Department (p. 10, Rollo.)

Justices Herrera, Cruz, and Feliciano promptly apprised the Chief Justice and Associate Justices of the Supreme
Court in writing, of this "distressing development' and asked to be relieved from their assignments in the HRET
because
By the above action (of the House) the promulgation of the decision of the Tribunal in the electoral
protest entitled "Bondoc v. Pineda" (HRET Case No. 25), previously scheduled for 14 March 1991, is
sought to be aborted (See the Consolidated Bank and Trust Corporation v. Hon. Intermediate
Appellate Court, G.R. No. 73777-78 promulgated 12 September 1990). Even if there were no legal
impediment to its promulgation, the decision which was reached on a 5 to 4 vote may now be
confidently expected to be overturned on a motion for reconsideration by the party-litigant which
would have been defeated.
The decision in Bondoc v. Pineda was ready as early as October 1990 with a margin of 23 votes in
favor of protestant Bondoc. Because some members of the Tribunal requested re-appreciation of
some ballots, the finalization of the decision had to be deferred by at least 4 months.
With the re-appreciation completed, the decision, now with a margin of 107 votes in favor of
protestant Bondoc, and concurred in by Justices Ameurfina A. Melencio-Herrera, Isagani A. Cruz and
Florentino P. Feliciano, and Congressmen Juanita G. Camasura and Antonio H. Cerilles, is set for
promulgation on 14 March 1991, with Congressmen Honorato Y. Aquino, David A. Ponce de Leon
Simeon E. Garcia, Jr. and Jose E. Calingasan, dissenting.
Congressman Casamura's vote in the Bondoc v. Pineda case was, in our view, a conscience vote,
for which he earned the respect of the Tribunal but also the loss of the confidence of the leader of
his party.
Under the above circumstances an untenable situation has come about. It is extremely difficult to
continue with membership in the Tribunal and for the Tribunal to preserve it. 8 integrity and
credibility as a constitutional body charged with a judicial task. It is clear to us that the unseating
of an incumbent member of Congress is being prevented at all costs. We believe that the Tribunal
should not be hampered in the performance of its constitutional function by factors which have
nothing to do with the merits of the cases before it.
In this connection, our own experience teaches that the provision for proportional representation in
the Tribunal found in Article VI, Section 17 of the 1987 Constitution, should be amended to provide
instead for a return to the composition mandated in the 1935 Constitution, that is: three (3)
members chosen by the House or Senate upon nomination of the party having the largest number
of votes and three (3) of the party having the second largest number of votes: and a judicial
component consisting of three (3) justices from the Supreme Court. Thereby, no party or coalition
of parties can dominate the legislative component in the Tribunal.
In the alternative, the Senate Electoral Tribunal could perhaps sit as the sole judge of all contests
relating to the election, returns and qualifications of members of the House of Representatives.
Similarly, the House of Representatives Electoral Tribunal could sit as the sole judge of all such
contests involving members of the Senate. In this way, there should be lesser chances of nonjudicial elements playing a decisive role in the resolution of election contests.
We suggest that there should also be a provision in the Constitution that upon designation to
membership in the Electoral Tribunal, those so designated should divest themselves of affiliation
with their respective political parties, to insure their independence and objectivity as they sit in
Tribunal deliberations.
There are only three (3) remaining cases for decision by the Tribunal. Bondoc should have been
promulgated today, 14 March 1991. Cabrera v. Apacible (HRET Case No. 21) is scheduled for
promulgation on 31 March 1991 and Lucman v. Dimaporo (HRET Case No. 45), after the Holy Week
recess.
But political factors are blocking the accomplishment of the constitutionally mandated task of the
Tribunal well ahead of the completion of the present congressional term.
Under these circumstances, we are compelled to ask to be relieved from the chairmanship and
membership in the Tribunal.
xxx xxx xxx
At the open session of the HRET in the afternoon of the same day, the Tribunal issued Resolution No. 91-0018
cancelling the promulgation of the decision in HRET Case No. 25. The resolution reads:
In view of the formal notice the Tribunal has received at 9:45 tills morning from the House of
Representatives that at its plenary session held on March 13, 1991, it had voted to withdraw the
nomination and rescind the election of Congressman Camasura to the House of Representatives
Electoral Tribunal,' the Tribunal Resolved to cancel the promulgation of its Decision in Bondoc vs.
Pineda (HRET Case No. 25) scheduled for this afternoon. This is because, without Congressman
Camasura's vote, the decision lacks the concurrence of five members as required by Section 24 of
the Rules of the Tribunal and, therefore, cannot be validly promulgated.
The Tribunal noted that the three (3) Justices-members of the Supreme Court, being of the opinion
that this development undermines the independence of the Tribunal and derails the orderly
adjudication of electoral cases, they have asked the Chief Justice, in a letter of even date, for their
relief from membership in the Tribunal.

The Tribunal further Noted that Congressman Cerilles also manifested his intention to resign as a
member of the Tribunal.
The Tribunal further Noted that Congressmen Aquino, Ponce de Leon, Garcia, Jr., and Calingasan
also manifested a similar intention. (p. 37, Rollo.)
On March 19, 1991, this Court, after deliberating on the request for relief of Justices Herrera, Cruz and Feliciano,
resolved to direct them to return to their duties in the Tribunal. The Court observed that:
... in view of the sensitive constitutional functions of the Electoral Tribunals as the 'sole judge' of all
contests relationship to the election, returns and qualifications of the members of Congress, all
members of these bodies are appropriately guided only by purely legal considerations in the
decision of the cases before them and that in the contemplation of the Constitution the memberslegislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as
representatives of their respective political parties but as impartial judges. The view was also
submitted that, to further bolster the independence of the Tribunals, the term of office of every
member thereof should be considered co-extensive with the corresponding legislative term and
may not be legally terminated except only by death, resignation, permanent disability, or removal
for valid cause, not including political disloyalty.
ACCORDINGLY, the Court Resolved: a) to DECLINE the request of justices Herrera, Cruz, and
Feliciano to be relieved from their membership in the House of Representatives Electoral Tribunal
and instead to DIRECT them to resume their duties therein: b) to EXPRESS its concern over the
intrusion of non-judicial factors in the proceedings of the House of Representatives Electoral
Tribunal, which performs functions purely judicial in character despite the inclusion of legislators in
its membership; and c) to NOTE the view that the term of all the members of the Electoral
Tribunals, including those from the legislature, is co-extensive with the corresponding legislative
term and cannot be terminated at will but only for valid legal cause, and to REQUIRE the Justicesmembers of the Tribunal to submit the issue to the said Tribunal in the first instance.
Paras J. filed this separate concurring opinion: 'I concur, but I wish to add that Rep. Camasura
should be allowed to cast his original vote in favor of protestant Bondoc, otherwise a political and
judicial travesty will take place.' Melencio-Herrera, Cruz and Feliciano, JJ., took no part. Gancayco,J.,
is on leave.
On March 21, 1991, a petition for certiorari, prohibition and mandamus was filed by Dr. Emigdio A. Bondoc against
Representatives Marciano M. Pineda, Magdaleno M. Palacol, Juanita G. Camasura, Jr., or any other representative
who may be appointed Vice Representative Juanita G. Camasura, Jr., and the House of Representatives Electoral
Tribunal, praying this Court to:
1. Annul the decision of the House of Representatives of March 13, 1991, 'to withdraw the
nomination and to rescind the nomination of Representative Juanita G. Camasura, Jr. to the House
of Representatives Electoral Tribunal;"
2. Issue a wilt of prohibition restraining respondent Palacol or whomsoever may be designated in
place of respondent Camasura from assuming, occupying and discharging functions as a member
of the House of Representatives Electoral Tribunal;
3. Issue a writ of mandamus ordering respondent Camasura to immediately reassume and
discharge his functions as a member of the House of Representatives Electoral Tribunal; and
4. Grant such other relief as may be just and equitable.
Upon receipt of the petition, the Court, without giving it due course, required the respondents to comment 5 on the
petition within ten days from notice and to enjoin the HRET 'from reorganizing and allowing participation in its
proceedings of Honorable Magdaleno M. Palacol or whoever is designated to replace Honorable Juanita G.
Camasura in said House of Representatives Electoral Tribunal, until the issue of the withdrawal of the nomination
and rescission of the election of said Congressman Camasura as member of the HRET by the House of
Representatives is resolved by this Court, or until otherwise ordered by the Court." (p. 39, Rollo.)
Congressman Juanito G. Camasura, Jr. did not oppose the petition.
Congressman Marciano M. Pineda's plea for the dismissal of the petition is centered on Congress' being the sole
authority that nominates and elects from its members. Upon recommendation by the political parties therein, those
who are to sit in the House of Representatives Electoral Tribunal (and in the Commission on Appointments as well),
hence, it allegedly has the sole power to remove any of them whenever the ratio in the representation of the
political parties in the House or Senate is materially changed on account of death, incapacity, removal or expulsion
from the political party; 6 that a Tribunal member's term of office is not co-extensive with his legislative term, 7 for
if a member of the Tribunal who changes his party affiliation is not removed from the Tribunal, the constitutional
provision mandating representation based on political affiliation would be completely nullified; 8 and that the
expulsion of Congressman Camasura from the LDP, is "purely a party affair" of the LDP 9 and the decision to
rescind his membership in the House Electoral Tribunal is the sole prerogative of the House-of-Representative
Representatives, hence, it is a purely political question beyond the reach of judicial review. 10
In his comment, respondent Congressman Magdaleno M. Palacol alleged that the petitioner has no cause of action
against him because he has not yet been nominated by the LDP for membership in the HRET. 11Moreover, the
petition failed to implead the House of Representatives as an indispensable party for it was the House, not the
HRET that withdrew and rescinded Congressman Camasura's membership in the HRET. 12
The Solicitor General, as counsel for the Tribunal, argued in a similar vein; that the inclusion of the HETH as a party
respondent is erroneous because the petition states no cause of action against the Tribunal. The petitioner does

not question any act or order of the HRET in violation of his rights. What he assails is the act of the House of
Representatives of withdrawing the nomination, and rescinding the election, of Congressman Juanita nito
Camasura as a member of the HRET. 13
Replying to the Solicitor General's Manifestation, the petitioner argued that while the Tribunal indeed had nothing
to do with the assailed decision of the House of Representatives, it acknowledged that decision by cancelling the
promulgation of its decision in HRET Case No. 25 to his (Bondoc's) prejudice. 14 Hence, although the Tribunal may
not be an indispensable party, it is a necessary party to the suit, to assure that complete relief is accorded to the
petitioner for "in the ultimate, the Tribunal would have to acknowledge, give recognition, and implement the
Supreme Court's decision as to whether the relief of respondent Congressman Camasura from the Office of the
Electoral Tribunal is valid." 15
In his reply to Congressman Palacol's Comment, the petitioner explained that Congressman Palacol was impleaded
as one of the respondents in this case because after the House of Representatives had announced the termination
of Congressman Camasura's membership in the HETH several newspapers of general circulation reported that the
House of Representatives would nominate and elect Congressman Palacol to take Congressman Camasura's seat in
the Tribunal. 16
Now, is the House of Representatives empowered by the Constitution to do that, i.e., to interfere with the
disposition of an election contest in the House Electoral Tribunal through the ruse of "reorganizing" the
representation in the tribunal of the majority party?
Section 17, Article VI of the 1987 Constitution supplies the answer to that question. It provides:
Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns and qualifications of
their respective members, Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or House of Representatives, as the case may be,
who shall be chosen on the basis of proportional representation from the political parties and the
parties or organizations registered under the party list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
Section 17 reechoes Section 11, Article VI of the 1935 Constitution, except the provision on the representation of
the main political parties in the tribunal which is now based on proportional representation from all the political
parties, instead of equal representation of three members from each of the first and second largest political
aggrupations in the Legislature. The 1935 constitutional provision reads as follows:
Sec. 11. The Senate and the House of Representatives shall have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or of the House of Representatives, as the case may be, who shall
be chosen by each House, three upon nomination of the party having the largest number of votes
and three of the party having the second largest member of votes therein. The senior Justice in
each Electoral Tribunal shall be its Chairman. (1 935 Constitution of the Philippines.)
Under the above provision, the Justices held the deciding votes, aid it was impossible for any political party to
control the voting in the tribunal.
The 1973 Constitution did not provide for an electoral tribunal in the Batasang Pambansa.
The use of the word "sole" in both Section 17 of the 1987 Constitution and Section 11 of the 1935 Constitution
underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of contests relating to the election,
returns and qualifications of the members of the House of Representatives (Robles vs. House of Representatives
Electoral Tribunal, G.R. No. 86647, February 5, 1990). The tribunal was created to function as a nonpartisancourt
although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. What this Court
had earlier said about the Electoral Commission applies as well to the electoral tribunals of the Senate and House
of Representatives:
The purpose of the constitutional convention creating the Electoral Commission was to provide an
independent and impartial tribunal for the determination of contests to legislative office, devoid of
partisan consideration, and to transfer to that tribunal all the powers previously exercised by the
legislature in matters pertaining to contested elections of its members.
The power granted to the electoral Commission to judge contests relating to the election and
qualification of members of the National Assembly is intended to be as complete and unimpaired
as if it had remained in the legislature.
The Electoral Tribunals of the Senate and the House were created by the Constitution as special
tribunals to be the sole judge of all contests relating to election returns and qualifications of
members of the legislative houses, and, as such, are independent bodies which must be permitted
to select their own employees, and to supervise and control them, without any legislative
interference. (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818.)
To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to
hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts.
The Electoral Commission is a body separate from and independent of the legislature and though
not a power in the tripartite scheme of government, it is to all intents and purposes, when acting

within the limits of its authority, an independent organ; while composed of a majority of members
of the legislature it is a body separate from and independent of the legislature.
xxx xxx xxx
The Electoral Commission, a constitutional organ created for the specific purpose of determining
contests relating to election returns and qualifications of members of the National Assembly may
not be interfered with by the judiciary when and while acting within the limits of its authority, but
the Supreme Court has jurisdiction over the Electoral Commission for the purpose of determining
the character, scope and extent of the constitutional grant to the commission as sole judge of all
contests relating to the election and qualifications of the members of the National Assembly.
(Angara vs. Electoral Commission, 63 Phil. 139.)
The independence of the electoral tribunal was preserved undiminished in the 1987 Constitution as the following
exchanges on the subject between Commissioners Maambong and Azcuna in the 1986 Constitutional Commission,
attest:
MR. MAAMBONG. Thank you.
My questions will be very basic so we can go as fast as we can. In the case of the
electoral tribunal, either of the House or of the Senate, is it correct to say that
these tribunals are constitutional creations? I will distinguish these with the case of
the Tanodbayan and the Sandiganbayan which are created by mandate of the
Constitution but they are not constitutional creations. Is that a good distinction?
MR. AZCUNA. That is an excellent statement.
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal
or the House Electoral Tribunal is a constitutional body.?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional
restrictions?
MR. AZCUNA It would be subject to constitutional restrictions intended for that
body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera vs.
Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating
since it ruled that the electoral tribunals are not separate departments of the
government. Would that ruling still be valid?
MR. AZCUNA. Yes, they are not separate departments because the separate
departments are the legislative, the executive and the judiciary; but they are
constitutional bodies.
MR. MAAMBONG. Although they are not separate departments of government, I
would like to know again if the ruling in Angara vs. Electoral Commission, 53 Phil.
139, would still be applicable to the present bodies we are deciding on, when the
Supreme court said that these electoral tribunals are independent from Congress,
devoid of partisan influence or consideration and, therefore, Congress has no
power to regulate proceedings of these electoral tribunals.
MR. AZCUNA. I think that is correct. They are independent although they are not a
separate branch of government.
MR. MAAMBONG. There is a statement that in all parliaments of the world, the
invariable rule is to leave unto themselves the determination of controversies with
respect to the election and qualifications of their members, and precisely they have
this Committee on Privileges which takes care of this particular controversy.
Would the Gentleman say that the creation of electoral tribunals is an exception to
this rule because apparently we have an independent electoral tribunal?
MR. AZCUNA. To the extent that the electoral tribunals are independent, but the
Gentleman will notice that the wordings say: 'The Senate and the House of
Representatives shall each have an Electoral Tribunal. 'It is still the Senate Electoral
Tribunal and the House Electoral Tribunal. So, technically, it is the tribunal of the
House and tribunal of the Senate although they are independent.
MR. MAAMBONG. But both of them, as we have agreed on, are independent from
both bodies?
MR. AZCUNA. That is correct.
MR. MAAMBONG. This is the bottom line of my question. How can we say that these
bodies are independent when we still have six politicians sitting in both tribunals?
MR. AZCUNA. Politicians can be independent, Madam President.
MR. MAAMBONG. Madam President, when we discussed a portion of this in the
Committee on the Executive, there was a comment by Chief Justice ConcepcionCommissioner Concepcion-that there seems to be some incongruity in these

electoral tribunals, considering that politicians still sit in the tribunals in spite of the
fact that in the ruling in the case of Sanidad vs. Vera, Senate Electoral tribunal
Case No. 1, they are supposed to act in accordance with law and justice with
complete detachment from an political considerations. That is why I am asking now
for the record how we could achieve such detachment when there are six
politicians sitting there.
MR. AZCUNA. The same reason that the Gentleman, while chosen on behalf of the
opposition, has, with sterling competence, shown independence in the proceedings
of this Commission. I think we can also trust that the members of the tribunals will
be independent. (pp. 111-112, Journal, Tuesday, July 22, 1986, Emphasis supplied.)
Resolution of the House of Representatives violates the independence of the HRET.
The independence of the House Electoral Tribunal so zealously guarded by the framers of our Constitution, would,
however, by a myth and its proceedings a farce if the House of Representatives, or the majority party therein, may
shuffle and manipulate the political (as distinguished from the judicial) component of the electoral tribunal, to
serve the interests of the party in power.
The resolution of the House of Representatives removing Congressman Camasura from the House Electoral Tribunal
for disloyalty to the LDP, because he cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear
impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election
contest between Pineda and Bondoc.
To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would
reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three justices of
the Supreme Court and the lone NP member would be powerless to stop. A minority party candidate may as well
abandon all hope at the threshold of the tribunal.
Disloyalty to party is not a valid cause for termination of membership in the HRET.
As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete
detachment, impartiality, and independence even independence from the political party to which they belong.
Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of
the tribunal. In expelling Congressman Camasura from the HRET for having cast a conscience vote" in favor of
Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes
by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation
of the Constitution. Its resolution of expulsion against Congressman Camasura is, therefore, null and void.
Expulsion of Congressman Camasura violates his right to security of tenure.
Another reason for the nullity of the expulsion resolution of the House of Representatives is that it violates
Congressman Camasura's right to security of tenure. Members of the HRET as "sole judge" of congressional
election contests, are entitled to security of tenure just as members of the judiciary enjoy security of tenure under
our Constitution (Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral Tribunal may
not be terminated except for a just cause, such as, the expiration of the member's congressional term of office, his
death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with
another political party, or removal for other valid cause. A member may not be expelled by the House of
Representatives for "party disloyalty" short of proof that he has formally affiliated with another political group. As
the records of this case fail to show that Congressman Camasura has become a registered member of another
political party, his expulsion from the LDP and from the HRET was not for a valid cause, hence, it violated his right
to security of tenure.
There is nothing to the argument of respondent Pineda that members of the House Electoral Tribunal are not
entitled to security of tenure because, as a matter of fact, two Supreme Court Justices in the Tribunal were changed
before the end of the congressional term, namely: Chief Justice Marcelo B. Fernan who, upon his elevation to the
office of Chief Justice, was replaced by Justice Florentino P. Feliciano, and the latter, who was temporarily replaced
by Justice Emilio A. Gancayco, when he (J. Feliciano) took a leave of absence to deliver a lecture in Yale University.
It should be stressed, however, that those changes in the judicial composition to the HRET had no political
implications at all unlike the present attempt to remove Congressman Camasura. No coercion was applied on Chief
Justice Fernan to resign from the tribunal, nor on Justice Feliciano to go on a leave of absence. They acted on their
own free will, for valid reasons, and with no covert design to derail the disposition of a pending case in the HRET.
The case of Congressman Camasura is different. He was expelled from, and by, the LDP to punish him for "party
disloyalty" after he had revealed to the Secretary-General of the party how he voted in the Bondoc case. The
purpose of the expulsion of Congressman Camasura was to nullify his vote in the Bondoc case so that the HRET's
decision may not be promulgated, and so that the way could be cleared for the LDP to nominate a replacement for
Congressman Camasura in the Tribunal. That stratagem of the LDP and the House of Representatives is clearly
aimed to substitute Congressman Camasura's vote and, in effect, to change the judgment of the HRET in the
Bondoc case.
The judicial power of this Court has been invoked by Bondoc for the protection of his rights against the strong arm
of the majority party in the House of Representatives. The Court cannot be deaf to his plea for relief, nor indifferent
to his charge that the House of Representatives had acted with grave abuse of discretion in removing
Congressman Camasura from the House Electoral Tribunal. He calls upon the Court, as guardian of the
Constitution, to exercise its judicial power and discharge its duty to protect his rights as the party aggrieved by the
action of the House. The Court must perform its duty under the Constitution "even when the violator be the highest
official of the land or the Government itself" (Concurring opinion of J. Antonio Barredo in Aquino vs. Ponce-Enrile, 59
SCRA 183, 207).

Since the expulsion of Congressman Camasura from the House Electoral Tribunal by the House of Representatives
was not for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and
to deprive Bondoc of the fruits of the Tribunal's decision in his favor, the action of the House of Representatives is
clearly violative of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution) which created the House
Electoral Tribunal to be the "sole judge" of the election contest between Pineda and Bondoc. We, therefore, declare
null and void the resolution dated March 13, 1991 of the House of Representatives withdrawing the nomination,
and rescinding the election, of Congressman Camasura as a member of the House Electoral Tribunal. The
petitioner, Dr. Emigdio Bondoc, is entitled to the reliefs he prays for in this case.
WHEREFORE, the petition for certiorari, prohibition and mandamus is granted. The decision of the House of
Representatives withdrawing the nomination and rescinding the election of Congressman Juanita G. Camasura, Jr.
as a member of the House Electoral Tribunal is hereby declared null and void ab initio for being violative of the
Constitution, and Congressman Juanita G. Camasura, Jr. is ordered reinstated to his position as a member of the
House of Representatives Electoral Tribunal. The HRET Resolution No. 91-0018 dated March 14, 1991, cancelling
the promulgation of the decision in HRET Case No. 25 ("Dr. Emigdio Bondoc vs. Marciano A. Pineda") is also set
aside. Considering the unconscionable delay incurred in the promulgation of that decision to the prejudice of the
speedy resolution of electoral cases, the Court, in the exercise of its equity jurisdiction, and in the interest of
justice, hereby declares the said decision DULY PROMULGATED, effective upon service of copies thereof on the
parties, to be done immediately by the Tribunal. Costs against respondent Marciano A. Pineda.
SO ORDERED.
CASE: REYES VS COMELEC, GR NO. 207264, JUNE 25, 2013 JURISDICTION)

EN BANC
RESOLUTION
PEREZ, J.:
Before the Court is a Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary
Injunction and/or Status Quo Ante Order dated 7 June 2013 filed by petitioner Regina Ongsiako Reyes, assailing the
Resolutions dated 27 March 2013 and 14 May 2013 issued by public respondent Commission on Elections
(COMELEC) in SPA No. 13-053. The assailed Resolutions ordered the cancellation of the Certificate of Candidacy of
petitioner for the position of Representative of the lone district of Marinduque.
On 31 October 2012, respondent Joseph Socorro Tan, a registered voter and resident of the Municipality of Torrijos,
Marinduque, filed before the COMELEC an Amended Petition to Deny Due Course or to Cancel the Certificate of
Candidacy (COC) of petitioner on the ground that it contained material misrepresentations, specifically: (1) that she
is single when she is married to Congressman Herminaldo I. Mandanas of Batangas; 1 (2) that she is a resident of
Brgy. Lupac, Boac, Marinduque when she is a resident of Bauan, Batangas which is the residence of her husband,
and at the same time, when she is also a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted in the
Directory of Congressional Spouses of the House of Representatives;2 (3) that her date of birth is 3 July 1964 when
other documents show that her birthdate is either 8 July 1959 or 3 July 1960; 3 (4) that she is not a permanent
resident of another country when she is a permanent resident or an immigrant 4 of the United States of
America;5 and (5) that she is a Filipino citizen when she is, in fact, an American citizen. 6
In her Answer, petitioner countered that, while she is publicly known to be the wife of Congressman Herminaldo I.
Mandanas (Congressman Mandanas), there is no valid and binding marriage between them. According to
petitioner, although her marriage with Congressman Mandanas was solemnized in a religious rite, it did not comply
with certain formal requirements prescribed by the Family Code, rendering it void ab initio.7 Consequently,
petitioner argues that as she is not duty-bound to live with Congressman Mandanas, then his residence cannot be
attributed to her.8 As to her date of birth, the Certificate of Live Birth issued by the National Statistics Office shows
that it was on 3 July 1964.9 Lastly, petitioner notes that the allegation that she is a permanent resident and/or a
citizen of the United States of America is not supported by evidence. 10
During the course of the proceedings, on 8 February 2013, respondent filed a Manifestation with Motion to Admit
Newly Discovered Evidence and Amended List of Exhibits 11 consisting of, among others: (1) a copy of an article
published on the internet on 8 January 2013 entitled Seeking and Finding the Truth about Regina O. Reyes with
an Affidavit of Identification and Authenticity of Document executed by its author Eliseo J. Obligacion, which
provides a database record of the Bureau of Immigration indicating that petitioner is an American citizen and a
holder of a U.S. passport; (2) a Certification of Travel Records of petitioner, issued by Simeon Sanchez, Acting Chief,
Verification and Certification Unit of the Bureau of Immigration which indicates that petitioner used a U.S. Passport
in her various travels abroad.
On 27 March 2013, the COMELEC First Division issued a Resolution 12 cancelling petitioners COC, to
wit:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing, the instant Petition is GRANTED. Accordingly, the Certificate of Candidacy
of respondent REGINA ONGSIAKO REYES is herebyCANCELLED.
The COMELEC First Division found that, contrary to the declarations that she made in her COC, petitioner is not a
citizen of the Philippines because of her failure to comply with the requirements of Republic Act (R.A.) No. 9225 or

the Citizenship Retention and Re-acquisition Act of 2003, namely: (1) to take an oath of allegiance to the Republic
of the Philippines; and (2) to make a personal and sworn renunciation of her American citizenship before any public
officer authorized to administer an oath. In addition, the COMELEC First Division ruled that she did not have the
one-year residency requirement under Section 6, Article VI of the 1987 Constitution. 13 Thus, she is ineligible to run
for the position of Representative for the lone district of Marinduque.
Not agreeing with the Resolution of the COMELEC First Division, petitioner filed a Motion for Reconsideration 14 on 8
April 2013 claiming that she is a natural-born Filipino citizen and that she has not lost such status by simply
obtaining and using an American passport. Additionally, petitioner surmised that the COMELEC First Division relied
on the fact of her marriage to an American citizen in concluding that she is a naturalized American citizen.
Petitioner averred, however, that such marriage only resulted into dual citizenship, thus there is no need for her to
fulfill the twin requirements under R.A. No. 9225. Still, petitioner attached an Affidavit of Renunciation of Foreign
Citizenship sworn to before a Notary Public on 24 September 2012. As to her alleged lack of the one-year
residency requirement prescribed by the Constitution, she averred that, as she never became a naturalized citizen,
she never lost her domicile of origin, which is Boac, Marinduque.
On 14 May 2013, the COMELEC En Banc, promulgated a Resolution15 denying petitioners Motion for
Reconsideration for lack of merit.
Four days thereafter or on 18 May 2013, petitioner was proclaimed winner of the 13 May 2013 Elections.
On 5 June 2013, the COMELEC En Banc issued a Certificate of Finality16 declaring the 14 May 2013 Resolution of the
COMELEC En Banc final and executory, considering that more than twenty-one (21) days have elapsed from the
date of promulgation with no order issued by this Court restraining its execution. 17
On same day, petitioner took her oath of office18 before Feliciano R. Belmonte Jr., Speaker of the House of
Representatives.
Petitioner has yet to assume office, the term of which officially starts at noon of 30 June 2013.
In the present Petition for Certiorari with Prayer for Temporary Restraining Order and/or Preliminary Injunction
and/or Status Quo Ante Order, petitioner raises the following issues: 19
31) Whether or not Respondent Comelec is without jurisdiction over Petitioner who is a duly proclaimed winner and
who has already taken her oath of office for the position of Member of the House of Representatives for the lone
congressional district of Marinduque.
32) Whether or not Respondent Comelec committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it took cognizance of Respondent Tans alleged newly-discovered evidence without the same
having been testified on and offered and admitted in evidence which became the basis for its Resolution of the
case without giving the petitioner the opportunity to question and present controverting evidence, in violation of
Petitioners right to due process of law.
33) Whether or not Respondent Comelec committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared that Petitioner is not a Filipino citizen and did not meet the residency requirement for
the position of Member of the House of Representatives.
34) Whether or not Respondent Commission on Elections committed grave abuse of discretion amounting to lack or
excess of jurisdiction when, by enforcing the provisions of Republic Act No. 9225, it imposed additional
qualifications to the qualifications of a Member of the House of Representatives as enumerated in Section 6 of
Article VI of the 1987 Constitution of the Philippines.
The petition must fail.
At the outset, it is observed that the issue of jurisdiction of respondent COMELEC vis-a-vis that of House of
Representatives Electoral Tribunal (HRET) appears to be a non-issue. Petitioner is taking an inconsistent, if not
confusing, stance for while she seeks remedy before this Court, she is asserting that it is the HRET which has
jurisdiction over her. Thus, she posits that the issue on her eligibility and qualifications to be a Member of the
House of Representatives is best discussed in another tribunal of competent jurisdiction. It appears then that
petitioners recourse to this Court was made only in an attempt to enjoin the COMELEC from implementing its final
and executory judgment in SPA No. 13-053.
Nevertheless, we pay due regard to the petition, and consider each of the issues raised by petitioner. The need to
do so, and at once, was highlighted during the discussion En Banc on 25 June 2013 where and when it was
emphasized that the term of office of the Members of the House of Representatives begins on the thirtieth day of
June next following their election.
According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly proclaimed 20 because
pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has the exclusive jurisdiction to be the sole
judge of all contests relating to the election, returns and qualifications of the Members of the House of
Representatives.
Contrary to petitioners claim, however, the COMELEC retains jurisdiction for the following
reasons:cralavvonlinelawlibrary

First, the HRET does not acquire jurisdiction over the issue of petitioners qualifications, as well as over the assailed
COMELEC Resolutions, unless a petition is duly filed with said tribunal. Petitioner has not averred that she has filed
such action.
Second, the jurisdiction of the HRET begins only after the candidate is considered a Member of the House of
Representatives, as stated in Section 17, Article VI of the 1987 Constitution:cralavvonlinelawlibrary
Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective Members. x x x
As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction over a candidate who is not a member of the
House of Representatives, to wit:cralavvonlinelawlibrary
As to the House of Representatives Electoral Tribunals supposed assumption of jurisdiction over the issue of
petitioners qualifications after the May 8, 1995 elections, suffice it to say that HRETs jurisdiction as the sole judge
of all contests relating to the elections, returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives. Petitioner not being a member of
the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the
question. (Emphasis supplied.)
The next inquiry, then, is when is a candidate considered a Member of the House of Representatives?
In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and Guerrero v. COMELEC,24 the Court ruled
that:cralavvonlinelawlibrary
The Court has invariably held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of Representatives, the COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins.
(Emphasis supplied.)
This pronouncement was reiterated in the case of Limkaichong v. COMELEC,25 wherein the Court, referring to the
jurisdiction of the COMELEC vis-a-vis the HRET, held that:cralavvonlinelawlibrary
The Court has invariably held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins.
(Emphasis supplied.)
This was again affirmed in Gonzalez v. COMELEC,26 to wit:cralavvonlinelawlibrary
After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his
qualifications, as well as questions regarding the conduct of election and contested returns were transferred to
the HRET as the constitutional body created to pass upon the same. (Emphasis supplied.)
From the foregoing, it is then clear that to be considered a Member of the House of Representatives, there must be
a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office.
Indeed, in some cases, this Court has made the pronouncement that once a proclamation has been made,
COMELECs jurisdiction is already lost and, thus, its jurisdiction over contests relating to elections, returns, and
qualifications ends, and the HRETs own jurisdiction begins. However, it must be noted that in these cases, the
doctrinal pronouncement was made in the context of a proclaimed candidate who had not only taken an oath of
office, but who had also assumed office.
For instance, in the case of Dimaporo v. COMELEC,27 the Court upheld the jurisdiction of the HRET against that of
the COMELEC only after the candidate had been proclaimed, taken his oath of office before the Speaker of the
House, and assumed the duties of a Congressman on 26 September 2007, or after the start of his term on 30 June
2007, to wit:cralavvonlinelawlibrary
On October 8, 2007, private respondent Belmonte filed his comment in which he brought to Our attention that on
September 26, 2007, even before the issuance of thestatus quo ante order of the Court, he had already
been proclaimed by the PBOC as the duly elected Member of the House of Representatives of the First
Congressional District of Lanao del Norte. On that very same day, he had taken his oath before Speaker of the
House Jose de Venecia, Jr. and assumed his duties accordingly.
In light of this development, jurisdiction over this case has already been transferred to the House of
Representatives Electoral Tribunal (HRET). (Emphasis supplied.)
Apparently, the earlier cases were decided after the questioned candidate had already assumed office, and hence,
was already considered a Member of the House of Representatives, unlike in the present case.
Here, the petitioner cannot be considered a Member of the House of Representatives because, primarily, she has
not yet assumed office. To repeat what has earlier been said, the term of office of a Member of the House of

Representatives begins only at noon on the thirtieth day of June next following their election.28 Thus, until such
time, the COMELEC retains jurisdiction.
In her attempt to comply with the second requirement, petitioner attached a purported Oath Of Officetaken before
Hon. Feliciano Belmonte Jr. on 5 June 2013. However, this is not the oath of office which confers membership to the
House of Representatives.
Section 6, Rule II (Membership) of the Rules of the House of Representatives provides:cralavvonlinelawlibrary
Section 6. Oath or Affirmation of Members. Members shall take their oath or affirmation either collectively or
individually before the Speaker in open session.
Consequently, before there is a valid or official taking of the oath it must be made (1) before the Speaker of the
House of Representatives, and (2) in open session. Here, although she made the oath before Speaker Belmonte,
there is no indication that it was made during plenary or in open session and, thus, it remains unclear whether the
required oath of office was indeed complied with.
More importantly, we cannot disregard a fact basic in this controversy that before the proclamation of petitioner
on 18 May 2013, the COMELEC En Banc had already finally disposed of the issue of petitioners lack of Filipino
citizenship and residency via its Resolution dated 14 May 2013. After 14 May 2013, there was, before the
COMELEC, no longer any pending case on petitioners qualifications to run for the position of Member of the House
of Representative. We will inexcusably disregard this fact if we accept the argument of the petitioner that the
COMELEC was ousted of jurisdiction when she was proclaimed, which was four days after the COMELEC En
Banc decision. The Board of Canvasser which proclaimed petitioner cannot by such act be allowed to render
nugatory a decision of the COMELEC En Banc which affirmed a decision of the COMELEC First Division.
Indeed, the assailed Resolution of the COMELEC First Division which was promulgated on 27 March 2013, and the
assailed Resolution of the COMELEC En Banc which was promulgated on 14 May 2013, became final and executory
on 19 May 2013 based on Section 3, Rule 37 of the COMELEC Rules of Procedure which
provides:cralavvonlinelawlibrary
Section 3. Decisions Final after five days. Decisions in pre-proclamation cases and petitions to deny due course to
or cancel certificates of candidacy, to declare nuisance candidate or to disqualify a candidate, and to postpone or
suspend elections shall become final and executory after the lapse of five (5) days from their promulgation unless
restrained by the Supreme Court.
To prevent the assailed Resolution dated 14 May 2013 from becoming final and executory, petitioner should have
availed herself of Section 1, Rule 3729 of the COMELEC Rules of Procedure or Rule 6430of the Rules of Court by filing
a petition before this Court within the 5-day period, but she failed to do so. She would file the present last hour
petition on 10 June 2013. Hence, on 5 June 2013, respondent COMELEC rightly issued a Certificate of Finality.
As to the issue of whether petitioner failed to prove her Filipino citizenship, as well as her one-year residency in
Marinduque, suffice it to say that the COMELEC committed no grave abuse of discretion in finding her ineligible for
the position of Member of the House of Representatives.
Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance of newly-discovered
evidence without the same having been testified on and offered and admitted in evidence. She assails the
admission of the blog article of Eli Obligacion as hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her right to due process of law because she was
not given the opportunity to question and present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly adhere to the technical rules of procedure in the
presentation of evidence. Under Section 2 of Rule I, the COMELEC Rules of Procedure shall be liberally construed
in order x xx to achieve just, expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission. In view of the fact that the proceedings in a petition to deny due
course or to cancel certificate of candidacy are summary in nature, then the newly discovered evidence was
properly admitted by respondent COMELEC.
Furthermore, there was no denial of due process in the case at bar as petitioner was given every opportunity to
argue her case before the COMELEC. From 10 October 2012 when Tans petition was filed up to 27 March 2013
when the First Division rendered its resolution, petitioner had a period of five (5) months to adduce evidence.
Unfortunately, she did not avail herself of the opportunity given her.
Also, in administrative proceedings, procedural due process only requires that the party be given the opportunity
or right to be heard. As held in the case of Sahali v. COMELEC:31
The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an
opportunity or right to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many
times more creditably and predictable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied; administrative process cannot be fully
equated with due process in its strict judicial sense. Indeed, deprivation of due process cannot be

successfully invoked where a party was given the chance to be heard on his motion for
reconsideration. (Emphasis supplied)
As to the ruling that petitioner is ineligible to run for office on the ground of citizenship, the COMELEC First Division,
discoursed as follows:cralavvonlinelawlibrary
x x x for respondent to reacquire her Filipino citizenship and become eligible for public office, the law requires
that she must have accomplished the following acts: (1) take the oath of allegiance to the Republic of the
Philippines before the Consul-General of the Philippine Consulate in the USA; and (2) make a personal and sworn
renunciation of her American citizenship before any public officer authorized to administer an oath.
In the case at bar, there is no showing that respondent complied with the aforesaid requirements. Early on in the
proceeding, respondent hammered on petitioners lack of proof regarding her American citizenship, contending
that it is petitioners burden to present a case. She, however, specifically denied that she has become either a
permanent resident or naturalized citizen of the USA.
Due to petitioners submission of newly-discovered evidence thru a Manifestation dated February 7, 2013,
however, establishing the fact that respondent is a holder of an American passport which she continues to use
until June 30, 2012, petitioner was able to substantiate his allegations. The burden now shifts to respondent to
present substantial evidence to prove otherwise. This, the respondent utterly failed to do, leading to the
conclusion inevitable that respondent falsely misrepresented in her COC that she is a natural-born Filipino
citizen. Unless and until she can establish that she had availed of the privileges of RA 9225 by
becoming a dual Filipino-American citizen, and thereafter, made a valid sworn renunciation of her
American citizenship, she remains to be an American citizen and is, therefore, ineligible to run for and
hold any elective public office in the Philippines.32(Emphasis supplied.)
Let us look into the events that led to this petition: In moving for the cancellation of petitioners COC, respondent
submitted records of the Bureau of Immigration showing that petitioner is a holder of a US passport, and that her
status is that of a balikbayan. At this point, the burden of proof shifted to petitioner, imposing upon her the duty
to prove that she is a natural-born Filipino citizen and has not lost the same, or that she has re-acquired such
status in accordance with the provisions of R.A. No. 9225. Aside from the bare allegation that she is a natural-born
citizen, however, petitioner submitted no proof to support such contention. Neither did she submit any proof as to
the inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En Banc, petitioner admitted that she is a holder of
a US passport, but she averred that she is only a dual Filipino-American citizen, thus the requirements of R.A. No.
9225 do not apply to her. 33 Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship
dated 24 September 2012.34 Petitioner explains that she attached said Affidavit if only to show her desire and
zeal to serve the people and to comply with rules, even as a superfluity. 35 We cannot, however, subscribe to
petitioners explanation. If petitioner executed said Affidavit if only to comply with the rules, then it is an
admission that R.A. No. 9225 applies to her. Petitioner cannot claim that she executed it to address the
observations by the COMELEC as the assailed Resolutions were promulgated only in 2013, while the Affidavit was
executed in September 2012.
Moreover, in the present petition, petitioner added a footnote to her oath of office as Provincial Administrator, to
this effect: This does not mean that Petitioner did not, prior to her taking her oath of office as Provincial
Administrator, take her oath of allegiance for purposes of re-acquisition of natural-born Filipino status, which she
reserves to present in the proper proceeding. The reference to the taking of oath of office is in order to make
reference to what is already part of the records and evidence in the present case and to avoid injecting into the
records evidence on matters of fact that was not previously passed upon by Respondent COMELEC. 36 This
statement raises a lot of questions Did petitioner execute an oath of allegiance for re-acquisition of natural-born
Filipino status? If she did, why did she not present it at the earliest opportunity before the COMELEC? And is this
an admission that she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225, petitioner contends that, since
she took her oath of allegiance in connection with her appointment as Provincial Administrator of Marinduque, she
is deemed to have reacquired her status as a natural-born Filipino citizen.
This contention is misplaced. For one, this issue is being presented for the first time before this Court, as it was
never raised before the COMELEC. For another, said oath of allegiance cannot be considered compliance with Sec.
3 of R.A. No. 9225 as certain requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01,
otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No.
AFF-05-002 (Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the Bureau of Immigration.
Thus, petitioners oath of office as Provincial Administrator cannot be considered as the oath of allegiance in
compliance with R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on petitioners citizenship. Petitioner,
however, failed to clear such doubt.
As to the issue of residency, proceeding from the finding that petitioner has lost her natural-born status, we quote
with approval the ruling of the COMELEC First Division that petitioner cannot be considered a resident of
Marinduque:cralavvonlinelawlibrary

Thus, a Filipino citizen who becomes naturalized elsewhere effectively abandons his domicile of origin. Upon reacquisition of Filipino citizenship pursuant to RA 9225, he must still show that he chose to establish
his domicile in the Philippines through positive acts, and the period of his residency shall be counted
from the time he made it his domicile of choice.
In this case, there is no showing whatsoever that [petitioner] had already re-acquired her Filipino citizenship
pursuant to RA 9225 so as to conclude that she has regained her domicile in the Philippines. There being no proof
that [petitioner] had renounced her American citizenship, it follows that she has not abandoned her domicile of
choice in the USA.
The only proof presented by [petitioner] to show that she has met the one-year residency requirement of the law
and never abandoned her domicile of origin in Boac, Marinduque is her claim that she served as Provincial
Administrator of the province from January 18, 2011 to July 13, 2011. But such fact alone is not sufficient to
prove her one-year residency. For, [petitioner] has never regained her domicile in Marinduque as she
remains to be an American citizen. No amount of her stay in the said locality can substitute the fact
that she has not abandoned her domicile of choice in the USA.37 (Emphasis supplied.)
All in all, considering that the petition for denial and cancellation of the COC is summary in nature, the COMELEC is
given much discretion in the evaluation and admission of evidence pursuant to its principal objective of
determining of whether or not the COC should be cancelled. We held in Mastura v. COMELEC:38
The rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is
absolutely no evidence or no substantial evidence in support of such findings should be applied with greater force
when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC created and
explicitly made independent by the Constitution itself on a level higher than statutory administrative organs.
The COMELEC has broad powers to ascertain the true results of the election by means available to it. For the
attainment of that end, it is not strictly bound by the rules of evidence.
Time and again, We emphasize that the grave abuse of discretion which warrants this Courts exercise
of certiorari jurisdiction has a well-defined meaning. Guidance is found in Beluso v. Commission on
Elections39 where the Court held:cralavvonlinelawlibrary
x x x A petition for certiorari will prosper only if grave abuse of discretion is alleged and proved to
exist. "Grave abuse of discretion," under Rule 65, has a specific meaning. It is the arbitrary or despotic exercise of
power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power
that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of
law. For an act to be struck down as having been done with grave abuse of discretion, the abuse of
discretion must be patent and gross. (Emphasis supplied.)
Here, this Court finds that petitioner failed to adequately and substantially show that grave abuse of discretion
exists.
Lastly, anent the proposition of petitioner that the act of the COMELEC in enforcing the provisions of R.A. No. 9225,
insofar as it adds to the qualifications of Members of the House of Representatives other than those enumerated in
the Constitution, is unconstitutional, We find the same meritless.
The COMELEC did not impose additional qualifications on candidates for the House of Representatives who have
acquired foreign citizenship. It merely applied the qualifications prescribed by Section 6, Article VI of the 1987
Constitution that the candidate must be a natural-born citizen of the Philippines and must have one-year residency
prior to the date of elections. Such being the case, the COMELEC did not err when it inquired into the compliance
by petitioner of Sections 3 and 5 of R.A. No. 9225 to determine if she reacquired her status as a natural-born
Filipino citizen. It simply applied the constitutional provision and nothing more.
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave abuse of discretion on the
part of the Commission on Elections. The 14 May 2013 Resolution of the COMELECEn Banc affirming the 27 March
2013 Resolution of the COMELEC First Division is upheld.
SO ORDERED.

CASE: ABAYON VS COMELEC, FEB 11, 2010

EN BANC
G.R. No. 189466

February 11, 2010

DARYL GRACE J. ABAYON, Petitioner,

vs.
THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, PERFECTO C. LUCABAN, JR.,
RONYL S. DE LA CRUZ and AGUSTIN C. DOROGA, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 189506

CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO LESACA, JR., CRISTINA
PALABAY, RENATO M. REYES, JR., ERLINDA CADAPAN, ANTONIO FLORES and JOSELITO
USTAREZ,Respondents.
DECISION
ABAD, J.:
These two cases are about the authority of the House of Representatives Electoral Tribunal (HRET) to pass upon the
eligibilities of the nominees of the party-list groups that won seats in the lower house of Congress.
The Facts and the Case
In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo party-list organization
that won a seat in the House of Representatives during the 2007 elections.
Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all registered voters, filed a
petition for quo warranto with respondent HRET against Aangat Tayo and its nominee, petitioner Abayon, in HRET
Case 07-041. They claimed that Aangat Tayo was not eligible for a party-list seat in the House of Representatives,
since it did not represent the marginalized and underrepresented sectors.
Respondent Lucaban and the others with him further pointed out that petitioner Abayon herself was not qualified
to sit in the House as a party-list nominee since she did not belong to the marginalized and underrepresented
sectors, she being the wife of an incumbent congressional district representative. She moreover lost her bid as
party-list representative of the party-list organization called An Waray in the immediately preceding elections of
May 10, 2004.
Petitioner Abayon countered that the Commission on Elections (COMELEC) had already confirmed the status of
Aangat Tayo as a national multi-sectoral party-list organization representing the workers, women, youth, urban
poor, and elderly and that she belonged to the women sector. Abayon also claimed that although she was the
second nominee of An Waray party-list organization during the 2004 elections, she could not be regarded as having
lost a bid for an elective office.
Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the petition for quo warranto
since respondent Lucaban and the others with him collaterally attacked the registration of Aangat Tayo as a partylist organization, a matter that fell within the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a
seat in the House of Representatives, and not Abayon who was just its nominee. All questions involving her
eligibility as first nominee, said Abayon, were internal concerns of Aangat Tayo.
On July 16, 2009 respondent HRET issued an order, dismissing the petition as against Aangat Tayo but upholding its
jurisdiction over the qualifications of petitioner Abayon. 1 The latter moved for reconsideration but the HRET denied
the same on September 17, 2009,2 prompting Abayon to file the present petition for special civil action of
certiorari.
In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list group that won a seat in
the 2007 elections for the members of the House of Representatives. Respondents Reynaldo Lesaca, Jr., Cristina
Palabay, Renato M. Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of some other
party-list groups.
Shortly after the elections, respondent Lesaca and the others with him filed with respondent HRET a petition
forquo warranto against Bantay and its nominee, petitioner Palparan, in HRET Case 07-040. Lesaca and the others
alleged that Palparan was ineligible to sit in the House of Representatives as party-list nominee because he did not
belong to the marginalized and underrepresented sectors that Bantay represented, namely, the victims of
communist rebels, Civilian Armed Forces Geographical Units (CAFGUs), former rebels, and security guards. Lesaca
and the others said that Palparan committed gross human rights violations against marginalized and
underrepresented sectors and organizations.
Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was actually the party-list
Bantay, not he, that was elected to and assumed membership in the House of Representatives. Palparan claimed
that he was just Bantays nominee. Consequently, any question involving his eligibility as first nominee was an
internal concern of Bantay. Such question must be brought, he said, before that party-list group, not before the
HRET.
On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay for the reason that the
issue of the ineligibility or qualification of the party-list group fell within the jurisdiction of the COMELEC pursuant to
the Party-List System Act. HRET, however, defended its jurisdiction over the question of petitioner Palparans
qualifications.3 Palparan moved for reconsideration but the HRET denied it by a resolution dated September 10,
2009,4 hence, the recourse to this Court through this petition for special civil action of certiorari and prohibition.
Since the two cases raise a common issue, the Court has caused their consolidation.
The Issue Presented
The common issue presented in these two cases is:
Whether or not respondent HRET has jurisdiction over the question of qualifications of petitioners Abayon and
Palparan as nominees of Aangat Tayo and Bantay party-list organizations, respectively, who took the seats at the
House of Representatives that such organizations won in the 2007 elections.
The Courts Ruling

Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the Party-List System Act, vests
in the COMELEC the authority to determine which parties or organizations have the qualifications to seek party-list
seats in the House of Representatives during the elections. Indeed, the HRET dismissed the petitions for quo
warranto filed with it insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners
Abayon and Palparan were not elected into office but were chosen by their respective organizations under their
internal rules, the HRET has no jurisdiction to inquire into and adjudicate their qualifications as nominees.
If at all, says petitioner Abayon, such authority belongs to the COMELEC which already upheld her qualification as
nominee of Aangat Tayo for the women sector. For Palparan, Bantays personality is so inseparable and intertwined
with his own person as its nominee so that the HRET cannot dismiss the quo warranto action against Bantay
without dismissing the action against him.
But, although it is the party-list organization that is voted for in the elections, it is not the organization that sits as
and becomes a member of the House of Representatives. Section 5, Article VI of the Constitution, 5 identifies who
the "members" of that House are:
Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations. (Underscoring supplied)
Clearly, the members of the House of Representatives are of two kinds: "members x x x who shall be elected from
legislative districts" and "those who x x x shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations." This means that, from the Constitutions point of
view, it is the party-list representatives who are "elected" into office, not their parties or organizations. These
representatives are elected, however, through that peculiar party-list system that the Constitution authorized and
that Congress by law established where the voters cast their votes for the organizations or parties to which such
party-list representatives belong.
Once elected, both the district representatives and the party-list representatives are treated in like manner. They
have the same deliberative rights, salaries, and emoluments. They can participate in the making of laws that will
directly benefit their legislative districts or sectors. They are also subject to the same term limitation of three years
for a maximum of three consecutive terms.
It may not be amiss to point out that the Party-List System Act itself recognizes party-list nominees as "members of
the House of Representatives," thus:
Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the election of representatives
to the House of Representatives through a party-list system of registered national, regional and sectoral parties or
organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and
underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole,
to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a
full, free and open party system in order to attain the broadest possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible. (Underscoring supplied)
As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on Elections,6 a party-list
representative is in every sense "an elected member of the House of Representatives." Although the vote cast in a
party-list election is a vote for a party, such vote, in the end, would be a vote for its nominees, who, in appropriate
cases, would eventually sit in the House of Representatives.
Both the Constitution and the Party-List System Act set the qualifications and grounds for disqualification of partylist nominees. Section 9 of R.A. 7941, echoing the Constitution, states:
Sec. 9. Qualification of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of
the Philippines for a period of not less than one (1) year immediately preceding the day of the
election, able to read and write, bona fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.1avvphi1
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue until the expiration of his term.
In the cases before the Court, those who challenged the qualifications of petitioners Abayon and Palparan claim
that the two do not belong to the marginalized and underrepresented sectors that they ought to represent. The
Party-List System Act provides that a nominee must be a "bona fide member of the party or organization which he
seeks to represent."7
It is for the HRET to interpret the meaning of this particular qualification of a nomineethe need for him or her to
be a bona fide member or a representative of his party-list organizationin the context of the facts that
characterize petitioners Abayon and Palparans relation to Aangat Tayo and Bantay, respectively, and the
marginalized and underrepresented interests that they presumably embody.
Petitioners Abayon and Palparan of course point out that the authority to determine the qualifications of a party-list
nominee belongs to the party or organization that nominated him. This is true, initially. The right to examine the
fitness of aspiring nominees and, eventually, to choose five from among them after all belongs to the party or

organization that nominates them.8 But where an allegation is made that the party or organization had chosen and
allowed a disqualified nominee to become its party-list representative in the lower House and enjoy the secured
tenure that goes with the position, the resolution of the dispute is taken out of its hand.
Parenthetically, although the Party-List System Act does not so state, the COMELEC seems to believe, when it
resolved the challenge to petitioner Abayon, that it has the power to do so as an incident of its authority to
approve the registration of party-list organizations. But the Court need not resolve this question since it is not
raised here and has not been argued by the parties.
What is inevitable is that Section 17, Article VI of the Constitution 9 provides that the HRET shall be the sole judge of
all contests relating to, among other things, the qualifications of the members of the House of Representatives.
Since, as pointed out above, party-list nominees are "elected members" of the House of Representatives no less
than the district representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By
analogy with the cases of district representatives, once the party or organization of the party-list nominee has been
proclaimed and the nominee has taken his oath and assumed office as member of the House of Representatives,
the COMELECs jurisdiction over election contests relating to his qualifications ends and the HRETs own jurisdiction
begins.10
The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed the petitions for quo
warranto against Aangat Tayo party-list and Bantay party-list but upheld its jurisdiction over the question of the
qualifications of petitioners Abayon and Palparan.
WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order dated July 16, 2009 and
Resolution 09-183 dated September 17, 2009 in HRET Case 07-041 of the House of Representatives Electoral
Tribunal as well as its Order dated July 23, 2009 and Resolution 09-178 dated September 10, 2009 in HRET Case
07-040.
SO ORDERED.

6. COMMISSION ON APPOINTMENTS
ARTICLE VI. Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman,
twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from
the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall
not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from
their submission. The Commission shall rule by a majority vote of all the Members.
Section 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House
of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet
only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are
herein conferred upon it.
FUNCTION:
ARTICLE VII. Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions,
or boards.
The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.

7. POWERS OF THE CONGRESS

A. LEGISLATIVE OVERSIGHT FUNCTIONS
THREE KINDS
CASE: ABAKADA GURO VS PURISIMA, GR NO. 166715, AUG 14, 2008
EN BANC
G.R. No. 166715

August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS) 1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED

VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR.,
in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his
Capacity as Commissioner of Bureau of Customs, respondents.
DECISION

CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA)
93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of
a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). 3 It covers all officials
and employees of the BIR and the BOC with at least six months of service, regardless of employment status. 4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken
from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of
the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized organization. 6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the
Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue
collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4)
prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress. 7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee
created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax
reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the
officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best
only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and
undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost
responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis
for classification or distinction as to why such a system should not apply to officials and employees of all other
government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it
lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials
may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does
not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to
the President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and
unattainable target in order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the
doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the
enactment and approval of the law, the creation of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents acknowledge that public policy
requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the
reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in
conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the
functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover,
the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly,
the creation of the congressional oversight committee under the law enhances, rather than violates, separation of
powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power
on the part of the executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed
to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication.
And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct
adverse effect on the individual challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show
a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of
the Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere
enactment of the law even without any further overt act,13 petitioners fail either to assert any specific and concrete
legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal
stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The
grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law.
And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. 14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and
justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of
the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to
the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily
obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR
and the BOC to exceed their revenue targets and optimize their revenue-generation capability and collection. 15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere
conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty
hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To invalidate RA 9335
based on petitioners baseless supposition is an affront to the wisdom not only of the legislature that passed it but
also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set expectations of a public office is not
anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry,
efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as
well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws
against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in
detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of
their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting
or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary
measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners,
and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or
acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their
duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a
result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary
diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished. 19 When things or persons are different in fact or
circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court
declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause does not forbid discrimination

as to things that are different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in
the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the
classification be based on scientific or marked differences of things or in their relation. Neither is it
necessary that the classification be made with mathematical nicety. Hence, legislative classification may in
many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and the BOC. 23 Since the subject of the
law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the
BOC because they have the common distinct primary function of generating revenues for the national government
through the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and
subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by
the President upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law. 24
xxx

xxx

xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the
management and control of the Commissioner of Customs, who shall be appointed by the President upon
the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have
the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all
ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law. 25
xxx

xxx

xxx (emphasis supplied)

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

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

Percent (%) of the Excess Collection to

Accrue to the Fund

30% or below

15%

More than 30%

15% of the first 30% plus 20% of the

remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the
revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR
and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the
DBCC the distribution of the agencies revenue targets as allocated among its revenue districts in the case
of the BIR, and the collection districts in the case of the BOC.
xxx

xxx

xxx (emphasis supplied)

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

xxx

xxx

(b) To set the criteria and procedures for removing from service officials and employees whose
revenue collection falls short of the target by at least seven and a half percent (7.5%), with
due consideration of all relevant factors affecting the level of collection as provided in the rules
and regulations promulgated under this Act, subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process: Provided, That the following exemptions
shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis for
evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle of the
period under consideration unless the transfer was due to nonperformance of revenue targets or
potential nonperformance of revenue targets: Provided, however, That when the district or area of
responsibility covered by revenue or customs officials or employees has suffered from economic
difficulties brought about by natural calamities or force majeure or economic causes as may be
determined by the Board, termination shall be considered only after careful and proper review by
the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided,
That such decision shall be immediately executory: Provided, further, That the application of the
criteria for the separation of an official or employee from service under this Act shall be
without prejudice to the application of other relevant laws on accountability of public officers

and employees, such as the Code of Conduct and Ethical Standards of Public Officers and
Employees and the Anti-Graft and Corrupt Practices Act;
xxx

xxx

xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The
guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded the employee. 31 In the case of RA 9335, it
lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least
7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to
inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil
service laws.32 The action for removal is also subject to civil service laws, rules and regulations and compliance
with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity,"
"public convenience and welfare" and "simplicity, economy and welfare." 33 In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public
interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional
Oversight Committee composed of seven Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by the Senate President, with at least
two senators representing the minority. The Members from the House of Representatives shall be
appointed by the Speaker with at least two members representing the minority. After the Oversight
Committee will have approved the implementing rules and regulations (IRR) it shall thereafter
become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006,
it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged
encroachment on the executive function of implementing and enforcing the law may be considered moot and
academic.
This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality
of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to
enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program objectives, (b) to determine whether agencies
are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent
executive usurpation of legislative authority, and (d) to assess executive conformity with the
congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to
the checks and balances inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
"exponential accumulation of power" by the executive branch. By the beginning of the 20 th century,
Congress has delegated an enormous amount of legislative authority to the executive branch and the
administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative
agencies perform their functions within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided
into three categories, namely: scrutiny, investigationand supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to administrative
operations. Its primary purpose is to determine economy and efficiency of the operation of
government activities. In the exercise of legislative scrutiny, Congress may request information and
report from the other branches of government. It can give recommendations or pass resolutions for
consideration of the agency involved.
xxx

xxx

xxx

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

c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru legislative
supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area. While both congressional
scrutiny and investigation involve inquiry into past executive branch actions in order to influence future
executive branch performance, congressional supervision allows Congress to scrutinize the exercise of
delegated law-making authority, and permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive agency the power to promulgate regulations with
the force of law. These provisions require the President or an agency to present the proposed regulations
to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such
legislative veto provisions usually provide that a proposed regulation will become a law after the expiration
of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress
affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power between the
legislative and the executive branches of government as it offers lawmakers a way to delegate vast power
to the executive branch or to independent agencies while retaining the option to cancel particular exercise
of such power without having to pass new legislation or to repeal existing law. They contend that this
arrangement promotes democratic accountability as it provides legislative check on the activities of
unelected administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our
law and practice. It suffices to say that the complexities of modern government have often led
Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and
general statutory standards, leaving the choice of policy options to the discretion of an executive
officer. Congress articulates legislative aims, but leaves their implementation to the judgment of
parties who may or may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional scheme
could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the
legislative power to enact new legislation or to change existing law. But without some means of
overseeing post enactment activities of the executive branch, Congress would be unable to
determine whether its policies have been implemented in accordance with legislative intent and
thus whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the executive
prerogatives. They urge that any post-enactment measures undertaken by the legislative branch
should be limited to scrutiny and investigation; any measure beyond that would undermine the
separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes
an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the
executive or judicial branches of government. Proponents counter that legislative veto enhances
separation of powers as it prevents the executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and congressional committee investigations allow
Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to
review executive proposals before they take effect and they do not afford the opportunity for ongoing and
binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of "subordinate law" or those enacted by the executive branch
pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary
response by Congress to the accretion of policy control by forces outside its chambers." In an era of
delegated authority, they point out that legislative veto "is the most efficient means Congress has yet
devised to retain control over the evolution and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of
legislative veto provisions. The case arose from the order of the immigration judge suspending the
deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States
House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing
either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a
particular deportable alien to remain in the United States. The immigration judge reopened the deportation
proceedings to implement the House order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of
Congress. The United States Court of Appeals for Ninth Circuit held that the House was without
constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional
doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional.But the Court shied away from
the issue of separation of powers and instead held that the provision violates the presentment clause
and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As
such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a
majority of both Houses and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court
decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal
Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes
containing legislative veto provisions although some of these provisions required the approval of both

Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto
provisions were not even exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional oversight and considering the
nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision
in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee
was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend
and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on
the constitutional independence of the Commission on Elections. 36
With this backdrop, it is clear that congressional oversight is not unconstitutionalper se, meaning, it neither
necessarily constitutes an encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic
system of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation
of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution
imposes two basic and related constraints on Congress. 37 It may not vest itself, any of its committees or its
members with either executive or judicial power.38 And, when it exercises its legislative power, it must follow the
"single, finely wrought and exhaustively considered, procedures" specified under the Constitution, 39 including the
procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In
particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation 40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative
vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the
proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed
by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a
legislative veto in the form of a congressional oversight committee is in the form of an inward-turning delegation
designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which
Congress has by law initially delegated broad powers. 43 It radically changes the design or structure of the
Constitutions diagram of power as it entrusts to Congress a direct role in enforcing, applying or implementing its
own laws.44
Congress has two options when enacting legislation to define national policy within the broad horizons of its
legislative competence.45 It can itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with those standards. 46 In the latter case,
the law must be complete in all its essential terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when it formulates
rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts
necessary to bring the law into actual operation (contingent rule-making). 48
Administrative regulations enacted by administrative agencies to implement and interpret the law which they are
entrusted to enforce have the force of law and are entitled to respect. 49 Such rules and regulations partake of the
nature of a statute50 and are just as binding as if they have been written in the statute itself. As such, they have the
force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with
finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an overseer,
may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated
balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based
on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial
power unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a
condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on
presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to the extent reserved to the people by
the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which consists
of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the
act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a
committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber
legislative veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to
the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same
with his objections to the House where it originated, which shall enter the objections at large in its Journal
and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it
shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the
names of the members voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated within thirty days after the date of
receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid
legislative act with the force of law, it cannot take effect without such presentment even if approved by both
chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President. 55 As summarized by Justice Isagani
Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for some
measures that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral by the
Senate President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of the same
nature or purpose, they may all be consolidated into one bill under common authorship or as a committee
bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in
its entirety, scrutinized, debated upon and amended when desired. The second reading is the most
important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are distributed at least
three days before the third reading. On the third reading, the members merely register their votes and
explain them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three
readings. If there are differences between the versions approved by the two chambers, a conference
committee58representing both Houses will draft a compromise measure that if ratified by the Senate and
the House of Representatives will then be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the
signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers 59
The Presidents role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law after the
required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be complete in all its essential terms and conditions when it
leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it
becomes effective because it is only upon effectivity of the statute that legal rights and obligations become
available to those entitled by the language of the statute. Subject to the indispensable requisite of publication
under the due process clause,61 the determination as to when a law takes effect is wholly the prerogative of
Congress.62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires
the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of
the President, is limited to approving or vetoing the law. 63
From the moment the law becomes effective, any provision of law that empowers Congress or any of its members
to play any role in the implementation or enforcement of the law violates the principle of separation of powers and
is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows
Congress or its members to overturn any directive or ruling made by the members of the executive branch charged
with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be
similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions
is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the
other provisions of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the
remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force
and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while another part
is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a
separability clause in a statute creates the presumption that the legislature intended separability, rather
than complete nullity of the statute. To justify this result, the valid portion must be so far independent of
the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other. Enough must remain to make a complete,
intelligible and valid statute, which carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a
belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making
the parts of the statute dependent, conditional, or connected with one another, the legislature intended the
statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with
them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid
provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete,
intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and
Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or
implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation66 and became effective 15 days thereafter.67Until and unless the contrary is
shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight
Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional
Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONALand therefore NULL and VOID. The constitutionality of the remaining provisions of
RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect.
SO ORDERED.

INQUIRY IN AID OF LEGISLATION

ARTICLE VI. Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be
respected.
VS
QUESTION HOUR
ATRICLE VI. Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of
either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments.
Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the
State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

THE POWER OF INQUIRY

1. CONSTITUTIONAL REQUISITES/LIMITATIONS
CASE: GARCILIANO VS HOUSE OF REPRESENTATIVES, DEC 23, 2008
EN BANC
G.R. No. 170338

December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND
SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and
SUFFRAGE AND ELECTORAL REFORMS, respondents.
x----------------------x
G.R. No. 179275

December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT THE
HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON,
LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly between the
President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. They
captured unprecedented public attention and thrust the country into a controversy that placed the legitimacy of
the present administration on the line, and resulted in the near-collapse of the Arroyo government. The tapes,
notoriously referred to as the "Hello Garci" tapes, allegedly contained the Presidents instructions to COMELEC
Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These
recordings were to become the subject of heated legislative hearings conducted separately by committees of both
Houses of Congress.1
In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G. Escudero delivered
a privilege speech, "Tale of Two Tapes," and set in motion a congressional investigation jointly conducted by the
Committees on Public Information, Public Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms (respondent House Committees). During the
inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau of
Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director
Samuel Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee members on
the admissibility and authenticity of the recordings, the tapes were eventually played in the chambers of the
House.2
On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely. Nevertheless,
they decided to prepare committee reports based on the said recordings and the testimonies of the resource
persons.3
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a Petition for
Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of Preliminary
Injunction4docketed as G.R. No. 170338. He prayed that the respondent House Committees be restrained from
using these tape recordings of the "illegally obtained" wiretapped conversations in their committee reports and for
any other purpose. He further implored that the said recordings and any reference thereto be ordered stricken off
the records of the inquiry, and the respondent House Committees directed to desist from further using the
recordings in any of the House proceedings.5
Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a privilege
speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson promised to provide the public
"the whole unvarnished truth the whats, whens, wheres, whos and whys" of the alleged wiretap, and sought
an inquiry into the perceived willingness of telecommunications providers to participate in nefarious wiretapping
activities.
On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the Senate Committee on
National Defense and Security, chaired by Senator Rodolfo Biazon, who had previously filed two bills 6 seeking to
regulate the sale, purchase and use of wiretapping equipment and to prohibit the Armed Forces of the Philippines
(AFP) from performing electoral duties.7
In the Senates plenary session the following day, a lengthy debate ensued when Senator Richard Gordon aired his
concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body were to conduct a legislative
inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-Santiago delivered a privilege speech,
articulating her considered view that the Constitution absolutely bans the use, possession, replay or
communication of the contents of the "Hello Garci" tapes. However, she recommended a legislative investigation
into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other government
entities in the alleged illegal wiretapping of public officials. 9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals,
filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or
Writ of Preliminary Injunction,10 docketed as G.R. No. 179275, seeking to bar the Senate from conducting its
scheduled legislative inquiry. They argued in the main that the intended legislative inquiry violates R.A. No. 4200
and Section 3, Article III of the Constitution.11
As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the "Hello Garci"
tapes on September 7,12 1713 and October 1,14 2007.

Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino, Rodolfo G. Biazon,
Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed their Comment 16on the
petition on September 25, 2007.
The Court subsequently heard the case on oral argument. 17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource persons summoned
by the Senate to appear and testify at its hearings, moved to intervene as petitioner in G.R. No. 179275. 18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19
It may be noted that while both petitions involve the "Hello Garci" recordings, they have different objectivesthe
first is poised at preventing the playing of the tapes in the House and their subsequent inclusion in the committee
reports, and the second seeks to prohibit and stop the conduct of the Senate inquiry on the wiretapped
conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.
-IBefore delving into the merits of the case, the Court shall first resolve the issue on the parties standing, argued at
length in their pleadings.
In Tolentino v. COMELEC,20 we explained that "[l]egal standing or locus standi refers to a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury because of the challenged
governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury
is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable
action.21
The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions." 22
However, considering that locus standi is a mere procedural technicality, the Court, in recent cases, has relaxed
the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings." 24 The fairly recent Chavez v. Gonzales25 even
permitted a non-member of the broadcast media, who failed to allege a personal stake in the outcome of the
controversy, to challenge the acts of the Secretary of Justice and the National Telecommunications Commission.
The majority, in the said case, echoed the current policy that "this Court has repeatedly and consistently refused to
wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly
impact on public interest, in keeping with the Courts duty under the 1987 Constitution to determine whether or
not other branches of government have kept themselves within the limits of the Constitution and the laws, and
that they have not abused the discretion given to them." 26
In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that he is the
person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the members of the respondent
committees as one of the voices in the recordings. 27 Obviously, therefore, petitioner Garcillano stands to be directly
injured by the House committees actions and charges of electoral fraud. The Court recognizes his standing to
institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are concerned
citizens, taxpayers, and members of the IBP. They are of the firm conviction that any attempt to use the "Hello
Garci" tapes will further divide the country. They wish to see the legal and proper use of public funds that will
necessarily be defrayed in the ensuing public hearings. They are worried by the continuous violation of the laws
and individual rights, and the blatant attempt to abuse constitutional processes through the conduct of legislative
inquiries purportedly in aid of legislation.28
Intervenor Sagge alleges violation of his right to due process considering that he is summoned to attend the
Senate hearings without being apprised not only of his rights therein through the publication of the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation, but also of the intended legislation which underpins the
investigation. He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds
involved in the conduct of the questioned hearings. 29
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that intervenor
Sagge asserts his constitutional right to due process, 30 they satisfy the requisite personal stake in the outcome of
the controversy by merely being citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient petitioners
Ranadas and Agcaoilis and intervenor Sagges allegation that the continuous conduct by the Senate of the
questioned legislative inquiry will necessarily involve the expenditure of public funds. 32 It should be noted that
inFrancisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged
unconstitutional acts of the House of Representatives, yet the Court granted standing to the petitioners therein for,
as in this case, they invariably invoked the vindication of their own rightsas taxpayers, members of Congress,
citizens, individually or in a class suit, and members of the bar and of the legal professionwhich were also
supposedly violated by the therein assailed unconstitutional acts. 33

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor Sagge advance
constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents. The issues are of transcendental and paramount importance not only to the public but also to the
Bench and the Bar, and should be resolved for the guidance of all. 34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases climaxing in
the more recent case of Chavez, the Court recognizes the legal standing of petitioners Ranada and Agcaoili and
intervenor Sagge.
- II The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed in our prior
decisions is the principle that the exercise by this Court of judicial power is limited to the determination and
resolution of actual cases and controversies.35 By actual cases, we mean existing conflicts appropriate or ripe for
judicial determination, not conjectural or anticipatory, for otherwise the decision of the Court will amount to an
advisory opinion. The power of judicial inquiry does not extend to hypothetical questions because any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.36 Neither will the Court determine a moot question in a case in which no practical relief can be granted.
A case becomes moot when its purpose has become stale. 37 It is unnecessary to indulge in academic discussion of
a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of
things, cannot be enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance of an injunctive
writ to prohibit the respondent House Committees from playing the tape recordings and from including the same in
their committee report. He likewise prays that the said tapes be stricken off the records of the House proceedings.
But the Court notes that the recordings were already played in the House and heard by its members. 39 There is also
the widely publicized fact that the committee reports on the "Hello Garci" inquiry were completed and submitted to
the House in plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive remedy to restrain
the doing of an act about to be done, and not intended to provide a remedy for an act already accomplished. 41
- III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to continue with
the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of
the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or the House of
Representatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with
its duly published rules of procedure." The requisite of publication of the rules is intended to satisfy the basic
requirements of due process.42 Publication is indeed imperative, for it will be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even a
constructive one.43 What constitutes publication is set forth in Article 2 of the Civil Code, which provides that
"[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or
in a newspaper of general circulation in the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only in
1995 and in 2006.45 With respect to the present Senate of the 14th Congress, however, of which the term of half of
its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they
first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on Accountability
of Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21
of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published
rules of procedure." We quote the OSGs explanation:
The phrase "duly published rules of procedure" requires the Senate of every Congress to publish its
rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the
one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the
Senates membership, the composition of the Senate also changes by the end of each term. Each
Senate may thus enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by the
14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the following
rationalization:
The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present
Senate has twenty-four members, twelve of whom are elected every three years for a term of six years
each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of
Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution,
requires a majority of Senators to "constitute a quorum to do business." Applying the same reasoning
inArnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than
majority of the Senators continue into the next Congress. The consequence is that the Rules of
Proceduremust be republished by the Senate after every expiry of the term of twelve Senators. 47

The subject was explained with greater lucidity in our Resolution48 (On the Motion for Reconsideration) in the same
case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution is "continuing," as it is not dissolved as an entity with
each national election or change in the composition of its members. However, in the conduct of its day-today business the Senate of each Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the
same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous Congress) should not be bound by
the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even
with respect to the conduct of its business, then pending matters will not be deemed terminated with the
expiration of one Congress but will, as a matter of course, continue into the next Congress with the same
status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of
its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure)
states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall
begin their term of office, the President may endorse the Rules to the appropriate committee for
amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least one day
before its consideration, and the vote of the majority of the Senators present in the session shall be
required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until
they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after
an election and the possibility of the amendment or revision of the Rules at the start of each session in
which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the
date of their adoption until they are amended or repealed. Such language is conspicuously absent from
theRules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2)
newspapers of general circulation." The latter does not explicitly provide for the continued effectivity of
such rules until they are amended or repealed. In view of the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next
Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to
publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly
state that the same shall be effective in subsequent Congresses or until they are amended or repealed to
sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the
next Congress, it could have easily adopted the same language it had used in its main rules regarding
effectivity.
Respondents justify their non-observance of the constitutionally mandated publication by arguing that the rules
have never been amended since 1995 and, despite that, they are published in booklet form available to anyone for
free, and accessible to the public at the Senates internet web page. 49
The Court does not agree. The absence of any amendment to the rules cannot justify the Senates defiance of the
clear and unambiguous language of Section 21, Article VI of the Constitution. The organic law instructs, without
more, that the Senate or its committees may conduct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction whether or not these rules have undergone

amendments or revision. The constitutional mandate to publish the said rules prevails over any custom, practice or
tradition followed by the Senate.
Justice Carpios response to the same argument raised by the respondents is illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the
Senate, is not sufficient under the Taada v. Tuvera ruling which requires publication either in the Official
Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall
take effect seven (7) days after publication in two (2) newspapers of general circulation," precluding any
other form of publication. Publication in accordance with Taada is mandatory to comply with the due
process requirement because the Rules of Procedure put a persons liberty at risk. A person who violates
the Rules of Procedure could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known as the Electronic
Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A.
8792 considers an electronic data message or an electronic document as the functional equivalent of a written
document only for evidentiary purposes.51 In other words, the law merely recognizes the admissibility in evidence
(for their being the original) of electronic data messages and/or electronic documents. 52 It does not make the
internet a medium for publishing laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use
its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of
legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do
so only "in accordance with its duly published rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing Inquiries in Aid of
Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we take judicial notice of this fact,
the recent publication does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions.
Insofar as the consolidated cases are concerned, the legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because no published rules governed it, in clear contravention
of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in the consolidated
petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275 is GRANTED. Let a
writ of prohibition be issued enjoining the Senate of the Republic of the Philippines and/or any of its committees
from conducting any inquiry in aid of legislation centered on the "Hello Garci" tapes.
SO ORDERED.
2. EXECUTIVE PRIVILEGE; KINDS
CASE: SENATE OF THE PHIL. VS. ERMITA, GR NO. 169777, APR 20 2006
EN BANC
G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate

President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority
Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA,
LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON,
ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines,Respondents.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep certain information confidential
in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any
greater number; and in proportion as the number is increased, these qualities will be diminished." 1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence,
the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power
by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null
and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come
from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the

Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any
issuance of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees,
conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and offices including those employed in Government Owned and
Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the
Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations 2 dated September 22, 2005 to
the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the
AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q.
Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms
that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy
E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3)
Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4)
Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on
National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role
of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon
Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation,
on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal attention" while "some of the invited AFP officers are
currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a
letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said
officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten
the Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to
[his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource
persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or
cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had
been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," 7 which, pursuant to
Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of
the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive Branch of the government shall secure the
consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the
appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367,
23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and
Employees provides that Public Officials and Employees shall not use or divulge confidential or classified
information officially known to them by reason of their office and not made available to the public to prejudice the
public interest.
Executive privilege covers all confidential or classified information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by this executive order
(Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);

Military, diplomatic and other national security matters which in the interest of national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements
(Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered by the
executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the
Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in
the judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive
privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for
the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464,
and another letter8 informing him "that officials of the Executive Department invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant
to [E.O. 464]" and that "said officials have not secured the required consent from the President." On even date
which was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter 9 to Senator
Biazon, Chairperson of the Committee on National Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before
any Senate or Congressional hearings without seeking a written approval from the President" and "that no approval
has been granted by the President to any AFP officer to appear before the public hearing of the Senate Committee
on National Defense and Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig.
Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying before legislative inquiries without
her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face
court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464,
sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit
Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso,
Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas
Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board Member
Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo
L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464. 11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and
prohibition, were filed before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin
Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government
employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of
justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being
unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego
of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their
rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464
infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O.
464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and
conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in
public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and
their rights to information and to transparent governance are threatened by the imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and
law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null
and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging that as a coalition of 17 legal resource
non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized
sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the
general public, it has legal standing to institute the petition to enforce its constitutional right to information on
matters of public concern, a right which was denied to the public by E.O. 464, 13 prays, that said order be declared
null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the
issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates
powers and functions and conceals information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate
and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented
through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental
issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the
government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and
other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing"
and that "they will attend once [their] request is approved by the President." As none of those invited appeared,
the hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani
program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director
Norlito R. Gicana,17 and those from the Department of Budget and Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local
Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of appropriate
clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization
of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed
their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null
and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing,
enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21,
Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or
controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2)
assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam;
(b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable
contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R.
No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246
did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum 27 was
granted, subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in
the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them. 29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum 38 on
March 13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites
for a valid exercise of the Courts power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have
a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case. 39
Except with respect to the requisites of standing and existence of an actual case or controversy where the
disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667
make it clear that they, adverting to the non-appearance of several officials of the executive department in the
investigations called by the different committees of the Senate, were brought to vindicate the constitutional duty of
the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight
functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and
privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that
of the other petitioner groups and individuals who profess to have standing as advocates and defenders of the
Constitution, respondents contend that such interest falls short of that required to confer standing on them as
parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending power. 41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury
by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail
the constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin 42 and Valmonte v. Philippine
Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must have a personal
and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement
of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making
in a democratic system, but more especially for sound legislation 45 is not disputed. E.O. 464, however, allegedly
stifles the ability of the members of Congress to access information that is crucial to law-making. 46 Verily, the
Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy
and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain
inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim infringes their prerogatives as legislators. 47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel
Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called
by the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and
duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the
House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized

and underrepresented sectors, organizations and parties who lack well-defined political constituencies to
contribute to the formulation and enactment of legislation that will benefit the nation. 48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the
standing of their co-petitioners Courage and Codal is rendered unnecessary. 49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members, 50 invoke their
constitutional right to information on matters of public concern, asserting that the right to information, curtailed
and violated by E.O. 464, is essential to the effective exercise of other constitutional rights 51 and to the
maintenance of the balance of power among the three branches of the government through the principle of checks
and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the assertion of a public right, the mere fact
that he is a citizen satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues
raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded
standing on the ground of transcendental importance, however, it must establish (1) the character of the funds
(that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and
(3) the lack of any party with a more direct and specific interest in raising the questions being raised. 54 The first
and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is
bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and
uncertain, and at best is only a "generalized interest" which it shares with the rest of the political parties. Concrete
injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a
form traditionally capable of judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not
suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate
to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has
actually withheld her consent or prohibited the appearance of the invited officials. 56 These officials, they claim,
merely communicated to the Senate that they have not yet secured the consent of the President, not that the
President prohibited their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing
on September 28, 2005, respondents claim that the instruction not to attend without the Presidents consent was
based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will
abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her consent or prohibited the
appearance of the officials concerned immaterial in determining the existence of an actual case or controversy
insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an
express prohibition issuing from the President in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of officials invited to the
hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court
would now refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the
information in the possession of these officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as
the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it
vests the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its
committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, 58 a case decided in
1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to
legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong
Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy,
was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to
punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisedly and
effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of
inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which
the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite
information which is not infrequently true recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that information which is volunteered
is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. 59 . . .
(Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the
same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. 60 The matters
which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It
follows that the operation of government, being a legitimate subject for legislation, is a proper subject for
investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers
whose positions it is within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to
hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed
on executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation of their
offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of
the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation
on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even
if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established,
resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of
Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall
these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular clauses, 62 and in its very title, a discussion of executive
privilege is crucial for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of
the 1986 Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used
in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the
courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive
branch officers to withhold information from Congress, the courts, and ultimately the public." 65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying
kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be

more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated
by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in
the context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military
or diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to
disclose the identity of persons who furnish information of violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of
information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of
the executive branch of our government. Courts ruled early that the executive had a right to withhold documents
that might reveal military or state secrets. The courts have also granted the executive a right to withhold the
identity of government informers in some circumstances and a qualified right to withhold information related to
pending investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the
doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure
requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge
of highly important executive responsibilities involved in maintaining governmental operations, and extends not
only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive
domestic decisional and policy making functions, that is, those documents reflecting the frank expression
necessary in intra-governmental advisory and deliberative communications. 70 (Emphasis and underscoring
supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must
be asked is not only whether the requested information falls within one of the traditional privileges, but also
whether that privilege should be honored in a given procedural setting. 71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that
case was the validity of President Nixons claim of executive privilege against a subpoena issued by a district court
requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of
privilege was based on the Presidents general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the
U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a Presidents
powers. The Court, nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to
clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional
demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare. 73 Despite frequent
assertion of the privilege to deny information to Congress, beginning with President Washingtons refusal to turn
over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the
issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the
same year as Nixon, recognized the Presidents privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals
weighed the public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the
subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. 77Almonte
used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy
of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted
in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not
involve, as expressly stated in the decision, the right of the people to information. 78 Nonetheless, the Court
recognized that there are certain types of information which the government may withhold from the public, thus
acknowledging, in substance if not in name, that executive privilege may be claimed against citizens demands for
information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and

other national security matters."80 The same case held that closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to
matters recognized as "privileged information under the separation of powers," 82 by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from
the right to information.
From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify
it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of
disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the
President prior to appearing before Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by
any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made
the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1
is not made to depend on the department heads possession of any information which might be covered by
executive privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no reference to executive
privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the
Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House shall provide, appear before and be heard by such House
on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate
or the Speaker of the House of Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security
of the State or the public interest so requires and the President so states in writing, the appearance shall be
conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI.
Section 22 which provides for the question hour must be interpreted vis--vis Section 21 which provides for the
power of either House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the
deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved
distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed
that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or
before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the
Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one
of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet
ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22]
does not mean that they need not come when they are invited or subpoenaed by the committee of either House
when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez,
that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the 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. 83 (Emphasis and
underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of
department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely
in recognition of this distinction, later moved the provision on question hour from its original position as Section 20
in the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the
following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer,
to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner
Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead
of putting it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section
21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a
Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in
aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to
or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very
essential not only in the application of check and balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In
other words, we are accepting that and so this Section 31 would now become Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded
from the same assumption that these provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davides only concern was that the two provisions on
these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner
considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner
Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct
functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the
Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period
of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their
acts and the operation of the government, 85 corresponding to what is known in Britain as the question period.
There was a specific provision for a question hour in the 1973 Constitution 86 which made the appearance of
ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution,
where the ministers are also members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability of the Prime
Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the
program of government and shall determine the guidelines of national policy. Unlike in the presidential system
where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister
and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment
this confidence is lost the Prime Minister and the Cabinet may be changed. 87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour
in the present Constitution so as to conform more fully to a system of separation of powers. 88 To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from the question period of the
parliamentary system. That department heads may not be required to appear in a question hour does not,
however, mean that the legislature is rendered powerless to elicit information from them in all circumstances. In
fact, in light of the absence of a mandatory question period, the need to enforce Congress right to executive
information in the performance of its legislative function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress
has the right to obtain information from any source even from officials of departments and agencies in the
executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such
as that in Britain, a clear separation between the legislative and executive branches. It is this very separation that
makes the congressional right to obtain information from the executive so essential, if the functions of the
Congress as the elected representatives of the people are adequately to be carried out. The absence of close
rapport between the legislative and executive branches in this country, comparable to those which exist under a
parliamentary system, and the nonexistence in the Congress of an institution such as the British question period
have perforce made reliance by the Congress upon its right to obtain information from the executive essential, if it
is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive
information, its power of oversight of administration in a system such as ours becomes a power devoid of most of
its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the
power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight
function.
When Congress merely seeks to be informed on how department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in

keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless,
when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the
appearance is mandatory for the same reasons stated in Arnault. 90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of
it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a coequal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its
demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom
is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of impeachment. It is based on her being the highest
official of the executive branch, and the due respect accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not
only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary.
This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument
upon interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to
pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any
reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of
department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is
dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that
will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the
question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry,
unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive
Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials
of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the
judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP,
Chief of the PNP, and the National Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the President. Given the title of
Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem
generis, the determination by the President under this provision is intended to be based on a similar finding of
coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers
persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege,
the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying
that the person is in possession of information which is, in the judgment of the head of office concerned, privileged
as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the
challenged order.
Upon a determination by the designated head of office or by the President that an official is "covered by the
executive privilege," such official is subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned
unless the same is permitted by the President. The proviso allowing the President to give its consent means
nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the
President under E.O. 464, or by the President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the basis for the officials not showing up in the
legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the President has not reversed such

determination. Such declaration, however, even without mentioning the term "executive privilege," amounts to an
implied claim that the information is being withheld by the executive branch, by authority of the President, on the
basis of executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon
illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of
the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the
Executive Department invited to appear at the meeting will not be able to attend the same without the consent of
the President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of
Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials
Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said
officials have not secured the required consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor
does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend
the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the
invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the President, that the invited official possesses
information that is covered by executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied. Respecting the statement that the invited
officials have not secured the consent of the President, it only means that the President has not reversed the
standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement
from the President. In fine, an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the
separation of powers. The information does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to
determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked
therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation
of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door
Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege
under the challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in
the phrase "confidential or classified information between the President and the public officers covered by this
executive order."
Certainly, Congress has the right to know why the executive considers the requested information privileged. It does
not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and
that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress
doubly blind to the question of why the executive branch is not providing it with the information that it has
requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be
clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a
private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal consideration by that officer. The court itself
must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing
a disclosure of the very thing the privilege is designed to protect. 92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining
whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it

should be respected.93 These, in substance, were the same criteria in assessing the claim of privilege asserted
against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon. 95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby
preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any
claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its
objection to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by
claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government
has not shown nor even alleged that those who evaluated claimants product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The
facts upon which the privilege is based must be established. To find these interrogatories objectionable, this Court
would have to assume that the evaluation and classification of claimants products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte. 98 (Emphasis and underscoring
supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain
reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description of the documents
within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it
is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the
affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability
of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a
claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its
applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to
shield these documents from outside scrutiny, would make a farce of the whole procedure. 101(Emphasis and
underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly
stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: 102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these
questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the
records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas
issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a
statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or
remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before a congressional
committee[, and] cannot be condoned." (Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the privilege is meant to protect. 103 A useful analogy
in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman
v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate
himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his
silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if
the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring
supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted.
It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464,
coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress
to determine whether the withholding of information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads
of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive
on the other branches of government. It may thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular,

cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold
information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the Presidents authority and has the effect of
prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President
that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial
to the fulfillment of the unique role and responsibilities of the executive branch, 105 or in those instances where
exemption from disclosure is necessary to the discharge of highly important executive responsibilities. 106 The
doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of
necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption
from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as
to outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her
behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which
means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only
by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates
to exercise such power. There is even less reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this
score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment,
might be covered by executive privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the
Constitution mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the
need to ensure respect for such officials does not change the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on
matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present
controversy is not merely the legislative power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the
power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a
citizen for the production of documents pursuant to his right to information does not have the same obligatory
force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the
power to exact testimony from government officials. These powers belong only to Congress and not to an
individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The
citizens are thereby denied access to information which they can use in formulating their own opinions on the
matter before Congress opinions which they can then communicate to their representatives and other
government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte
v. Belmonte:
It is in the interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to
the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants
in the discussion are aware of the issues and have access to information relating thereto can such bear
fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the
need for publication. On the need for publishing even those statutes that do not directly apply to people in general,
Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws
relate to the people in general albeit there are some that do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant
naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does
not apply directly to all the people. The subject of such law is a matter of public interest which any member of the
body politic may question in the political forums or, if he is a proper party, even in courts of justice. 108 (Emphasis
and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people
to information on matters of public concern. It is, therefore, a matter of public interest which members of the body
politic may question before this Court. Due process thus requires that the people should have been apprised of this
issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert
it and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.
That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the
divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of
popular sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much greater value our right as a people to
take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005),
"Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under
the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.

A. PRESUMPTIVE PRESIDENTIAL COMMUNICATION PRIVILEGE

CASE: NERI VS SENATE, SEPT5, 2008
EN BANC
G.R. No. 180643

September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY,respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to
protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the
nation will receive the benefit of candid, objective and untrammeled communication and exchange of information
between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in
the exercise of the functions of the Presidency under the Constitution. The confidentiality of the Presidents
conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It
possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest
and the constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Courts co-equal branches of government. In this task, this Court
should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow
any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar
are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees
assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the
present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of

settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must
be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the
petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security
(collectively the "respondent Committees"). 3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11)
hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the
Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment
("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered
himP200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President
Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on President Arroyo and petitioners discussions relating to the NBN Project,
petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused to answer questions
on: (a) whether or not President Arroyo followed up the NBN Project, 4 (b) whether or not she directed him to
prioritize it,5 and (c) whether or not she directed him to approve it. 6
Respondent Committees persisted in knowing petitioners answers to these three questions by requiring him to
appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
Ermita wrote to respondent Committees and requested them to dispense with petitioners testimony on the ground
of executive privilege.7 The letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the confidentiality of her conversations and
correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity
for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. Disclosure of conversations of the President will have a chilling effect on the President,
and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by
the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the
confidential nature in which these information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing the privilege is
designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour
hearing, wherein he has answered all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President
invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioners reply to
respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be covered by executive privilege. He also
manifested his willingness to appear and testify should there be new matters to be taken up. He just requested
that he be furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request for
advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S.
Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project),
citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the Office of the
Senate Sergeant-at-Arms until such time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8He insisted that he had not shown
"any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for advance notice of questions. He also
mentioned the petition for certiorari he previously filed with this Court on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in
contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction)
on February 1, 2008. In the Courts Resolution dated February 4, 2008, the parties were required to observe the
status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds:first, the communications elicited
by the three (3) questions were covered by executive privilege; and second, respondent Committees committed
grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject
communications as falling under the presidential communications privilege because (a) they related to a

quintessential and non-delegable power of the President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately show a compelling need that would justify the
limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating
authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in
issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to
petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity
of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the
Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they
issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following
grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT THE ASSAILED
ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR
LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO PRESUMPTION THAT
THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO
HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE
COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED
CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED,
THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE
ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY THE
DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY
IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE
CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE
CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT COMMIT GRAVE
ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V.
ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL
RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF
THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND
WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSGS INTERVENTION ON
THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this
Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project
or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege
to the facts of the case. He further submits the following contentions: first, the assailed Decision did not reverse
the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed
to overcome the presumption of executive privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted that they could dispense with petitioners
testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to
the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing
presidential communications privilege; fourth, there is no right to pry into the Presidents thought processes or
exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the
power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the
present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating
effect on them; eighth, the requirement for a witness to be furnished advance copy of questions comports with
due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the
Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the
Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held
in Almonte v. Vasquez9and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the three
(3) questions are covered by executive privilege, because all the elements of the presidential communications
privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally
defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders
the same void; and (6) respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the Office of the
Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation
of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as
follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in
our legal system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by
the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by
the three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the
contempt order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily against
executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on
the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in
the earlier case ofAlmonte v. Vasquez,12 affirmed that the presidential communications privilege is
fundamental to the operation of government and inextricably rooted in the separation of powers under the
Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees, reiterated this concept.
There, the Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that "there are certain types of information which the government may
withhold from the public,16" that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other national security matters"; 17 and that "the right to information
does not extend to matters recognized as privileged information under the separation of powers, by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings."18
Respondent Committees observation that this Courts Decision reversed the "presumption that inclines heavily
against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision.
The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific
portion thereof should be isolated and resorted to, but the decision must be considered in its entirety. 19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita,
which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of
the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the United States and
in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress,
the courts, or the public, is recognized only in relation to certain types of information of a sensitive
character. While executive privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose information by the mere fact of
being executive officials. Indeed, the extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and
underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being
claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the
Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2(b)
of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such that the presumption in this
situation inclines heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita

20

expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the Presidents authority and has
the effect of prohibiting the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which
iscrucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those
instances where exemption from disclosure isnecessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information
must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being,
by definition, an exemption from the obligation to disclose information, in this case to Congress, the
necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a
particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President
the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of
the President", which means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less reason to uphold
such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3,
in relation to Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a
specific matter involving an executive agreement between the Philippines and China, which was the subject of the
three (3) questions propounded to petitioner Neri in the course of the Senate Committees investigation. Thus, the
factual setting of this case markedly differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling
in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has
been defined and used in the legal literature of the United States.
Schwart defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from Congress, the courts, and ultimately the
public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte
v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences,
like the claim of confidentiality of judicial deliberations, for example, he has all the values to which
we accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the process
of shaping policies and making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication,"
which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in
the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive
authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines
heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermitaand
make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the Presidents subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact
that they are department heads. Only one executive official may be exempted from this power - the
President on whom executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on he being the highest official of the executive branch, and the due
respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom.
(Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the absence of proof of a compelling or critical need for
disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates
jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications." 23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not covered by
executive privilege because the elements of thepresidential communications privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable
presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential
and non-delegable presidential power," because the Constitution does not vest it in the President alone, but also in
the Monetary Board which is required to give its prior concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less executive.
"Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of
substance.24 On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or,
even if delegated, the responsibility remains with the obligor. 25 The power to enter into an executive agreement is
in essence an executive power. This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that
the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a
complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of the
governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances,
which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches.
Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not
render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the
Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the
President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the
President does not render the power to pass law executive in nature. This is because the power to pass law is
generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to
enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of
conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged
in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational
proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications
privilege to communications between those who are operationally proximate to the President but who may have
"no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in Inre: Sealed Case27precisely to
limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White
House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity"
to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the
privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege
that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as narrowly as is consistent with ensuring that
the confidentiality of the Presidents decision-making process is adequately protected. Not every person
who plays a role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, the privilege should not
extend to staff outside the White House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited and received by those members of an
immediate White House advisors staff who have broad and significant responsibility for investigation and
formulating the advice to be given the President on the particular matter to which the communications
relate. Only communications at that level are close enough to the President to be revelatory of
his deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is
"operational proximity" to the President that matters in determining whether "[t]he
Presidents confidentiality interests" is implicated).(Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet,
thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family.
Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the
Decision the organizational testlaid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show that
the operational proximity test used in the Decision is not considered conclusive in every case. In determining which
test to use, the main consideration is to limit the availability of executive privilege only to officials who stand
proximate to the President, not only by reason of their function, but also by reason of their positions in the
Executives organizational structure. Thus, respondent Committees fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational proximity test is unfounded.
C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in
balancing respondent Committees and the Presidents clashing interests, the Court did not disregard
the 1987 Constitutional provisions on government transparency, accountability and disclosure of
information.
Third, respondent Committees claim that the Court erred in upholding the Presidents invocation, through the
Executive Secretary, of executive privilege because (a) between respondent Committees specific and
demonstrated need and the Presidents generalized interest in confidentiality, there is a need to strike the balance
in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987
Philippine Constitution on government transparency, accountability and disclosure of information, specifically,
Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII,
Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive privilege is not merely founded on her generalized
interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations with
another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples Republic
of China. Given the confidential nature in which this information were conveyed to the President, he
cannot provide the Committee any further details of these conversations, without disclosing the very thing
the privilege is designed to protect.(emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This
is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the Presidents communication with her advisor.
The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of
minds between officials of the Philippines and China. Whatever the President says about the agreement particularly while official negotiations are ongoing - are matters which China will surely view with particular
interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic
relations with the Peoples Republic of China. We reiterate the importance of secrecy in matters involving foreign
negotiations as stated inUnited States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and
even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions
which may have been proposed or contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and
mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for
vesting the power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit, then, a right
in the House of Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a
negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v.
Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. InAkbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on intergovernment exchanges prior to the conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for
the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The
Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision
which are inherent in executive action.Another essential characteristic of diplomacy is
its confidential nature. Although much has been said about "open" and "secret" diplomacy, with

disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and
justified the practice. In the words of Mr. Stimson:
"A complicated negotiation cannot be carried through without many, many
private talks and discussion, man to man; many tentative suggestions and
proposals. Delegates from other countries come and tell you in confidence of
their troubles at home and of their differences with other countries and with
other delegates; they tell you of what they would do under certain
circumstances and would not do under other circumstances If these reports
should become public who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance
of democracy. As expressed by one writer, "It can be said that there is no more rigid system of
silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co.,
1938) President Wilson in starting his efforts for the conclusion of the World War declared that we
must have "open covenants, openly arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to "muscle in." An illtimed speech by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a widespread propaganda to
block the negotiations. After a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion before it is approved. (The New
American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the
President is the sole organ of the nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold problems,
the President alone has the power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the
field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations." Annals, 6th Cong., col. 613 (Emphasis supplied;
underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves the
Presidents dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress
may peremptorily inquire into not only official, documented acts of the President but even her confidential and
informal discussions with her close advisors on the pretext that said questions serve some vague legislative need.
Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive
to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the
core of the Presidents decision-making process, which inevitably would involve her conversations with a member
of her Cabinet.
With respect to respondent Committees invocation of constitutional prescriptions regarding the right of the people
to information and public accountability and transparency, the Court finds nothing in these arguments to support
respondent Committees case.
There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective
functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to
whom the power has been delegated if they are denied access to information. And the policies on public
accountability and democratic government would certainly be mere empty words if access to such information of
public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in
any way curb the publics right to information or diminish the importance of public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is
nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed
his willingness to do so. Our Decision merely excludes from the scope of respondents investigation the three (3)
questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to
appear before respondents to answer the said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in the confidentiality of such information
is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute
right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law is

unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to
information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law,the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis
supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws
prescribing the exact limitations within which the right may be exercised or the correlative state duty may be
obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security
matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and diplomatic matters, as well as information on
inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held
that even where there is no need to protect such state secrets, they must be "examined in strict
confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the peoples right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a
citizen for the production of documents pursuant to his right to information does not have the same obligatory
force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen the
power to exact testimony from government officials." As pointed out, these rights belong to Congress, not to the
individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and
petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court
will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate
legislative inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees
from inquiring into the NBN Project. All that is expected from them is to respect matters that are
covered by executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the
purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees inquiry
into the NBN Project. To reiterate, this Court recognizes respondent Committees power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed
privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose
of respondent Committees questions can be sufficiently supported by the expedient of mentioning statutes and/or
pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing
of compelling need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the
limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating
authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the
three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the
three (3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is
necessary to resolve the competing interests in a manner that would preserve the essential functions of each
branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process.
In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated,
through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to the rule of law.
This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that
guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We
have elected to employ an adversary system of criminal justice in which the parties contest all issues
before a court of law. The need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would be defeated if judgments
were to be founded on a partial or speculative presentation of the facts. The very integrity of

the judicial system and public confidence in the system depend on full disclosure of all the
facts, within the framework of the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be available for the production of
evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The
Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted
with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.'
Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without
due process of law.It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against the
inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of law and gravely impair the basic
function of the courts. APresident's acknowledged need for confidentiality in the communications
of his office is general in nature, whereas theconstitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair adjudication of a particular
criminal case in the administration of justice. Without access to specific facts a criminal prosecution
may be totally frustrated. ThePresident's broad interest in confidentiality of
communication will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice. The
generalized assertion of privilege must yield to thedemonstrated, specific need for evidence in a
pending criminal trial.(emphasis supplied)
In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a criminal case
but rather with the Senates need for information in relation to its legislative functions. This leads us to consider
once again just how critical is the subject information in the discharge of respondent Committees functions. The
burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of
the President in order to gather information which, according to said respondents, would "aid" them in crafting
legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon 41expounded on the nature of a legislative
inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether
the subpoenaed materials are critical to the performance of its legislative functions. There is a clear
difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution
engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise reconstruction of past
events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In
contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is
probable cause to believe that certain named individuals did or did not commit specific crimes. If, for
example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence, the exact text of oral statements
recorded in their original form, is undeniable. We see no comparable need in the legislative process,
at least not in the circumstances of this case. Indeed, whatever force there might once have been in
the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has
been substantially undermined by subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively
critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies.
Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which
unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive and the
Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is
conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in
favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as
well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign
Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that
there is a presumptive privilege in favor of Presidential communications. TheAlmonte case quoted U.S. v.
Nixon and recognized a presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to
overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to

the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply
a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and
non-specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be
determined without the said information sought by the three (3) questions. As correctly pointed out by the
Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:
If respondents are operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or prevented from recurring
by remedial legislation, the answer to those three questions will not necessarily bolster or
inhibit respondents from proceeding with such legislation. They could easily presume the
worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come
up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral
Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still
come up with legislations even without petitioner answering the three (3) questions. In other words, the
information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the Senate.
For instance, question Number 1 whether the President followed up the NBN project. According to
the other counsel this question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse
a Bill to include Executive Agreements had been used as a device to the circumventing the
Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem in its
factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal
involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the
lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without
this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the Procurement
Law, Your Honor, because the petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that other government officials who
had something to do with the approval of the contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the project after
being told about the alleged bribe. How critical is that to the lawmaking function of the Senate?
And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer
this question?
ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires
that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or
how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge
this burden, the presumption in favor of confidentiality of presidential communication stands. The implication of
the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will
significantly impair the Presidents performance of her function. Needless to state this is assumed, by virtue of the
presumption.
Anent respondent Committees bewailing that they would have to "speculate" regarding the questions covered by
the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee
on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative committee is undeniably a
part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction of past events. It added that, normally,
Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the
respondent Committees self-defeating proposition that without the answers to the three (3) questions objected to
as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees need for
information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is
legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress. 44 And
if this is the primary objective of respondent Committees in asking the three (3) questions covered by privilege, it
may even contradict their claim that their purpose is legislative in nature and not oversight. In any event, whether
or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees
investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries
has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in appropriate
cases.46(Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really in
aid of legislation because it is not related to a purpose within the jurisdiction of Congress, since the aim
of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had
violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears
more within the province of the courts rather than of the Legislature."47 (Emphasis and underscoring
supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48 While it may be a worthy endeavor to investigate the potential culpability of high government officials,
including the President, in a given government transaction, it is simply not a task for the Senate to perform. The
role of the Legislature is to make laws, not to determine anyones guilt of a crime or wrongdoing. Our Constitution
has not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the
Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth,"
which in respondent Committees view appears to be equated with the search for persons responsible for
"anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon
our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who should be haled to court for prosecution
and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination
of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency.
Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a
legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence
and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of
exposure.49 In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only investigate
into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are
within the exclusive province of one of the other branches of the government. Lacking the judicial power
given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary.
Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against
President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the
Ombudsman who has the duty "to investigate any act or omission of any public official, employee, office
or agency when such act or omission appears to be illegal, unjust, improper, or inefficient."51 The Office
of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine
whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts
upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of
procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the

constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and
safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their investigation,
they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the
Legislatures need for information in an investigation of graft and corruption cannot be deemed compelling enough
to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without the information covered by the three (3)
questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on the ground
that there is no privilege when the information sought might involve a crime or illegal activity, despite the
absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v.
Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought, and the degree
to which the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does
not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at
present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however,
complaints relating to the NBN Project have already been filed against President Arroyo and other personalities
before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of
government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not
the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for
criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to
arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial
proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which
prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do
not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the
right to be presumed innocent until proven guilty in proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order
because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down
in Senate v. Ermita; (3) they issued the contempt order in accordance with their internalRules; (4) they did not
violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and
(5) their issuance of the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no
reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling inSenate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along
with the "usual indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not
provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses.
Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse)
have been raised many times.53 Constant exposure to congressional subpoena takes its toll on the ability of the
Executive to function effectively. The requirements set forth inSenate v. Ermita are modest mechanisms that would
not unduly limit Congress power. The legislative inquiry must be confined to permissible areas and thus, prevent
the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their
constitutional right to due process. They should be adequately informed what matters are to be covered by the
inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these
requirements concede too little political costs or burdens on the part of Congress when viewed vis--vis the
immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system allows committees to continually
investigate the Executive without constraint. One process solution addressing this concern is to
require each investigation be tied to a clearly stated purpose. At present, the charters of some
congressional committees are so broad that virtually any matter involving the Executive can be construed
to fall within their province. Accordingly, investigations can proceed without articulation of specific need or
purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to
limit the initial scope of the investigation and should also serve to contain the investigation once it is
instituted.Additionally, to the extent clear statements of rules cause legislatures to pause and
seriously consider the constitutional implications of proposed courses of action in other areas,
they would serve that goal in the context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee to simply
articulate its reasons to investigate pro forma does no more than imposes minimal drafting
burdens. Rather, the system must be designed in a manner that imposes actual burdens on the
committee to articulate its need for investigation and allows for meaningful debate about the
merits of proceeding with the investigation. (Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand that should
have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any
pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to "testify on what he knows relative to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid
of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional
requirement exists, the Court has the duty to look into Congress compliance therewith. We cannot turn a blind eye
to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De
Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a constitutional provision or the rights of private
individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers each House to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial review is warranted because there appears to be a
clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it
who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions
by the Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because
during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number
could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers
and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National
Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee
on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were
present.57 These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano
and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and
vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan
stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively
signed for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed.
Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order
was prepared and thereafter presented to the other members for signing. As a result, the contempt order which
was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order were present during the January 30, 2008
deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of person
appearing in or affected by such inquiries shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness settled expectation. If the
limitations are not observed, the witness settled expectation is shattered. Here, how could there be a majority
vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect
that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully
deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the
members are fully articulated in such proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the
contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else,
it is the witness who has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees fourth argument. Respondent
Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and
in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules,
unless the same is repealed or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no
debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national

election or change in the composition of its members. However, in the conduct of its day-to-day business the
Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of
the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same
status.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress,
but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule
is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of
which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then
pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its
business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin
their term of office, the President may endorse the Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion which should be presented at least one day before
its consideration, and the vote of the majority of the Senators present in the session shall be required for
its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they
are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an
election and the possibility of the amendment or revision of the Rules at the start of each session in which the
newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of
their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules.
The Rulessimply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of
general circulation."59 The latter does not explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next
Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished
business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance
with the duly published rules of procedureis categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall
be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted
pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should
be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses
as expressed in Section 21, Article VI of the Constitution.Sans such violation, orders and proceedings are
considered valid and effective.
Respondent Committees last argument is that their issuance of the contempt order is not precipitate or arbitrary.
Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent
Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly
manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that
he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person.
He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent
Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an
executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for

contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very
cooperative during the September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on
Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the
arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to
accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official
in a co-equal branch of government. He is an alter ego of the President. The same haste and impatience marked
the issuance of the contempt order, despite the absence of the majority of the members of the respondent
Committees, and their subsequent disregard of petitioners motion for reconsideration alleging the pendency of his
petition forcertiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches
of government. In a free and democratic society, the interests of these branches inevitably clash, but each must
treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is
imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated
checks and balances among the different branches of government.
In the present case, it is respondent Committees contention that their determination on the validity of executive
privilege should be binding on the Executive and the Courts. It is their assertion that their internal procedures and
deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between
co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court
to wonder: In respondent Committees paradigm of checks and balances, what are the checks to the Legislatures
all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out corruption, even in
the highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it
by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent
Committees contend, this is founded on the constitutional command of transparency and public accountability. The
recent clamor for a "search for truth" by the general public, the religious community and the academe is an
indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best
venue for this noble undertaking is not in the political branches of government. The customary partisanship and
the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving
justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a
more exacting "search for truth" than the process here in question, if that is its objective.
WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is hereby DENIED.
SO ORDERED.

B. OFFERS IN TREATY NEGOTIATION

CASE: AKBAYAN, ET AL VS THOMAS AQUINO, GR NO. 170516, JULY 16, 2008
EN BANC
DECISION
CARPIO MORALES, J.:
Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the present petition
for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation
process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House
Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine
government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent Undersecretary
Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order
No. 213 (CREATION OF A PHILIPPINE COORDINATING COMMITTEE TO STUDY THE FEASIBILITY OF THE JAPANPHILIPPINES ECONOMIC PARTNERSHIP AGREEMENT) [1] to study and negotiate the proposed JPEPA, and to furnish the
Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005,
replied that the Congressman shall be provided with a copy thereof once the negotiations are completed and as
soon as a thorough legal review of the proposed agreement has been conducted.
In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive
Secretary Eduardo Ermita to furnish it with all documents on the subject including the latest draft of the proposed
agreement, the requests and offers etc. [2] Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote
CongressmanTeves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains
that the Committees request to be furnished all documents on the JPEPA may be difficult
to accomplish at this time, since the proposed Agreement has been a work in progress

for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as
soon as the text thereof is settled and complete. (Emphasis supplied)
Congressman Aguja also
requested
NEDA
Director-General Romulo Neri and
Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.

Tariff

Commission

Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy
of the documents being requested, albeit he was certain thatUsec. Aquino would provide the Congressman with a
copy once the negotiation is completed. And by letter of July 18, 2005, NEDA Assistant Director-General Margarita
R.Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded
to Usec. Aquino who would be in the best position to respond to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most
recent draft of the JPEPA, but the same was not pursued because by Committee Chairman
Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in abeyance the
issuance of the subpoena until the President gives her consent to the disclosure of the documents. [3]
Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the
present petition was filed on December 9, 2005.[4] The agreement was to be later signed on September 9, 2006 by
President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following
which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the
Constitution. To date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another
country in the event the Senate grants its consent to it, covers a broad range of topics which respondents
enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business
environment, and general and final provisions.[5]
While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,
[6]
respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply when the
JPEPA was still being negotiated the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it
necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said
party from the enjoyment of a legal right.[7] Respondents deny that petitioners have such standing to sue. [I]n the
interest of a speedy and definitive resolution of the substantive issues raised, however, respondents consider it
sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary[8]which emphasizes the need for
a personal stake in the outcome of the controversy on questions of standing.
In a petition anchored upon the right of the people to information on matters of public concern, which is a public
right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. [9] As
the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in
their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence.
Mootness
Considering, however, that [t]he principal relief petitioners are praying for is the disclosure of the contents of the
JPEPA prior to its finalization between the two States parties,[10] public disclosure of the text of the JPEPA after its
signing by the President, during the pendency of the present petition, has been largely rendered moot and
academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered
as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not
take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of
each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the Governments
of the Parties exchange diplomatic notes informing each other that their respective legal
procedures necessary for entry into force of this Agreement have been completed. It
shall remain in force unless terminated as provided for in Article 165. [11] (Emphasis supplied)
President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which
must be met prior to the agreements entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic
to the extent that it seeks the disclosure of the full text thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the
JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.[12]

A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the Philippine
and Japanese offers, is thus in order.

Grounds relied upon by petitioners

Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA
negotiations violates their right to information on matters of publicconcern[13] and contravenes other constitutional
provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public
interest.[14]Second, they contend that non-disclosure of the same documents undermines their right to effective and
reasonable participation in all levels of social, political, and economic decision-making. [15] Lastly, they proffer that
divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate
into a mere rubber stamp of the Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except
for the last, the same as those cited for the disclosure of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of respondents claim of privilege shall be
discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the threshold requirement that it be a
matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there is no rigid test
which can be applied. Public concern like public interest is a term that eludes exact definition.Both
terms embrace a broad spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally arouse the interest of an
ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis
whether the matter at issue is of interest or importance, as it relates to or affects the public .
[16]
(Underscoring supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese
offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do
not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public disclosure.
Respondents claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is
absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in
nature. The types of information which may be considered privileged have been elucidated in Almonte v. Vasquez,
[17]
Chavez v. PCGG,[18] Chavez v. Public Estates Authority, [19] and most recently in Senate v. Ermita[20] where the
Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which
it is made.[21] In the present case, the ground for respondents claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters of
diplomatic character and under negotiation and review. In this case, the privileged character of
thediplomatic negotiations has been categorically invoked and clearly explained by
respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal
review by the parties fall under the exceptions to the right of access to information on matters of
public concern and policy of public disclosure. They come within the coverage of executive
privilege. At the time when the Committee was requesting for copies of such documents, the
negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain
and subject to change. Considering the status and nature of such documents then and now, these
are evidently covered by executive privilege consistent with existing legal provisions and settled
jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the rolling texts
which may undergo radical change or portions of which may be totally abandoned. Furthermore,
the negotiations of the representatives of the Philippines as well as of Japan must be
allowed to explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict confidentiality.
[22]
(Emphasis and underscoring supplied).
The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter,
but that it pertains to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards
for the sake of national interest.[23] Even earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on the
state of the then on-going negotiations of the RP-US Military Bases Agreement. [25] The Court denied the petition,
stressing that secrecy of negotiations with foreign countries is not violative of the constitutional provisions
of freedom of speech or of the press nor of the freedom of access to information. The Resolution went on to
state, thus:
The nature of diplomacy requires centralization of authority and expedition of decision
which are inherent in executive action. Another essential characteristic of diplomacy is
its confidential nature. Although much has been said about open and secret diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and
justified the practice. In the words of Mr. Stimson:
A complicated negotiation . . . cannot be carried through without many,
many private talks and discussion, man to man; many tentative
suggestions and proposals.Delegates from other countries come and tell
you in confidence of their troubles at home and of their differences with
other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other
circumstances. . . If these reports . . . should become public . . . who
would ever trust American Delegations in another conference? (United
States Department of State, Press Releases, June 7, 1930, pp. 282-284.).
xxx
There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the substance
of democracy. As expressed by one writer, It can be said that there is no more rigid system of
silence anywhere in the world. (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co.,
1938) President Wilson in starting his efforts for the conclusion of the World War declared that we
must have open covenants, openly arrived at. He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is possible. In the
moment that negotiations are started, pressure groups attempt to muscle in. An illtimed speech by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread propaganda to block
the negotiations. After a treaty has been drafted and its terms are fully published,
there is ample opportunity for discussion before it is approved. (The New American
Government and Its Works, James T. Young, 4 th Edition, p. 194) (Emphasis and underscoring
supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the
President is the sole organ of the nation in its negotiations with foreign countries, viz:
x x x In this vast external realm, with its important, complicated, delicate and manifold problems,
the President alone has the power to speak or listen as a representative of the
nation. He makestreaties with the advice and consent of the Senate; but he alone negotiates. Into
the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade
it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The
President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations. Annals, 6th Cong., col. 613. . . (Emphasis supplied;
underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be
kept perpetually confidential since there should be ample opportunity for discussion before [a treaty] is approved
the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japanese representatives submitted their offers with the
understanding that historic confidentiality[27] would govern the same. Disclosing these offers could impair the
ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it
appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain
more favorable terms in an area of greater national interest. Apropos are the following observations of
Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that
publicity leads to grandstanding, tends to freeze negotiating positions, and inhibits the
give-and-take essential to successful negotiation. As Sissela Bok points out, if negotiators
have more to gain from being approved by their own sides than by making a reasoned agreement
with competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the
public reaction may leave them little option. It would be a brave, or foolish, Arab leader who
expressed publicly a willingness for peace with Israel that did not involve the return of the entire
West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing
settlements from Judea and Samaria in return for peace.[28] (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher
national goals for the sake of securing less critical ones.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged
in all instances.Only after a consideration of the context in which the claim is made may it be determined if there is
a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.
Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the
Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the
present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial
factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They
stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters
affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and
commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases
Agreement, are not so vital to national security to disallow their disclosure.

Petitioners argument betrays a faulty assumption that information, to be considered privileged, must involve
national security. The recognition in Senate v. Ermita[29] that executive privilege has encompassed claims of varying
kinds, such that it may even be more accurate to speak of executive privileges, cautions against such
generalization.
While there certainly are privileges grounded on the necessity of safeguarding national security such as those
involving military secrets, not all are founded thereon. One example is the informers privilege, or the privilege
of the Government not to disclose the identity of a person or persons who furnish information of violations of law to
officers charged with the enforcement of that law. [30] The suspect involved need not be so notorious as to be a
threat to national security for this privilege to apply in any given instance.Otherwise, the privilege would be
inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long-standing
practice. It would also be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are presumed privileged
without distinguishing between those which involve matters of national security and those which do not, the
rationale for the privilege being that
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect the independence of decisionmakingof those tasked to exercise Presidential, Legislative and Judicial power. x x x[31] (Emphasis
supplied)
In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated
upon, so presidential communications are privileged whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one
significant qualification being that the Executive cannot, any more than the other branches of government, invoke
a general confidentiality privilege to shield its officials and employees from investigations by the proper
governmental institutions into possible criminal wrongdoing. [32] This qualification applies whether the privilege
is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation. [33]
Closely related to the presidential communications privilege is the deliberative process privilege recognized in
the United States. As discussed by the U.S. Supreme Court inNLRB v. Sears, Roebuck & Co,[34] deliberative process
covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated. Notably, the privileged status of such documents
rests, not on the need to protect national security but, on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and front page news, the
objective of the privilege being to enhance the quality of agency decisions. [35]
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for diplomatic negotiations is meant to
encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations
from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege
seeks, through the same means, to protect the independence in decision-making of the President, particularly in its
capacity as the sole organ of the nation in its external relations, and its sole representative with foreign
nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises,
not on account of the content of the information per se, but because the information is part of a process of
deliberation which, in pursuit of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the
Treasury[37] enlightens on the close relation between diplomatic negotiations and deliberative process
privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team
during the U.S.-French taxtreaty negotiations. Among the points noted therein were the issues to be discussed,

positions which the French and U.S. teams took on some points, the draft language agreed on, and articles which
needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a
deliberative process. Much give-and-take must occur for the countries to reach an
accord. A description of the negotiations at any one point would not provide an onlooker a
summary of the discussions which could later be relied on as law. It would not be working law as
the points discussed and positions agreed on would be subject to change at any date until the
treaty was signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-disclosure. Much
harm could accrue to the negotiations process if these notes were revealed. Exposure
of the pre-agreement positions of the French negotiators might well offend foreign
governments and would lead to less candor by the U. S. in recording the events of the
negotiations process.As several months pass in between negotiations, this lack of record could
hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted
policies. If these policies should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable to
releasing drafts of the treaty, particularly when the notes state the tentative provisions
and language agreed on. As drafts of regulations typically are protected by the
deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same
protection. (Emphasis and underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S.
Trade Representative[38] where the plaintiffs sought information relating to the just-completed negotiation of a
United States-Chile Free Trade Agreement the same district court, this time under Judge Friedman, consciously
refrained from applying the doctrine in Fulbright and ordered the disclosure of the information being sought.

Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion
of why the district court did not apply the same would help illumine this Courts own reasons for deciding the
present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely,
Exemption 5 of the Freedom of Information Act (FOIA). [39] In order to qualify for protection under Exemption 5, a
document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it
must be bothpre-decisional and part of the agency's deliberative or decision-making process.[40]
Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the two cases, based his
decision on what he perceived to be a significant distinction: he found the negotiators notes that were sought
in Fulbright to be clearly internal, whereas the documents being sought in CIEL were those produced by or
exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character,
the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be
inter-agency, but on whether the documents were part of the agency's pre-decisional deliberative process. On this
basis, Judge Friedman found that Judge Green's discussion [in Fulbright] of the harm that could result from
disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the
Court does not reach the question of deliberative process. (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its
distinct factual setting. Whether this conclusion was valid a question on which this Court would not pass the ruling
in Fulbright that [n]egotiations between two countries to draft a treaty represent a true example of a deliberative
process was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative
process.
Going back to the present case, the Court recognizes that the information sought by petitioners includes
documents produced and communicated by a party external to the Philippine government, namely, the Japanese
representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances
of CIEL than those ofFulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated
in Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic
negotiations should also be accorded privileged status, even if the documents subject of the present case cannot
be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the
first requirement of FOIA Exemption 5 that the documents be inter-agency was not met. In determining whether
the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to
deal with this requirement, it being laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to
FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic
negotiations, are more free to focus directly on the issue of whether the privilege being claimed is
indeed supported by public policy, without having to consider as the CIEL court did if these negotiations fulfill

a formal requirement of being inter-agency. Important though that requirement may be in the context of domestic
negotiations, it need not be accorded the same significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the
Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is the
fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present
case include members of the House of Representatives who invoke their right to information not just as citizens but
as members of Congress.
Petitioners thus conclude that the present case involves the right of members of Congress to demand information
on negotiations of international trade agreements from the Executive branch, a matter which was not raised
in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be
incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the present, where
the demand for information has come from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and
effect
simply
because
the
same
privilege
is
now
being
claimed
under
different
circumstances. The probability of the claim succeeding in the new context might differ, but to say that the
privilege, as such, has no validity at all in that context is another matter altogether.
The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be actuated by any
of at least three distinct kinds of considerations [state secrets privilege, informers privilege, and a generic privilege
for internal deliberations], and may be asserted, with differing degrees of success, in the context of either
judicial or legislative investigations, [41] implies that a privilege, once recognized, may be invoked under different
procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be
inferred from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties,
and not even the Senate or the House of Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for
information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot
be considered irrelevant in resolving the present case, the contextual differences between the two cases
notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer
that the socio-political and historical contexts of the two cases are worlds apart. They claim that the constitutional
traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought
that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the
incompatibility hypothesis, while valid when international relations were still governed by power, politics and wars,
are no longer so in this age of international cooperation. [42]
Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court notes that the
ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular
socio-political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so
changed that [a]n ill-timed speech by one of the parties or a frank declaration of the concession which are exacted
or offered on both sides no longer lead[s] to widespread propaganda to block the negotiations, or that parties in
treaty negotiations no longer expect their communications to be governed by historic confidentiality, the burden is
on them to substantiate the same. This petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so
as not to jeopardize the diplomatic process. They argue, however, that the same is privileged only at certain stages
of the negotiating process, after which such information must necessarily be revealed to the public. [43] They add
that the duty to disclose this information was vested in the government when the negotiations moved from the
formulation and exploratory stage to the firming up of definite propositions or official recommendations,
citing Chavez v. PCGG[44] and Chavez v. PEA.[45]
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case
and Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does not apply to
diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information on ongoing negotiations before a final contract. The information, however, must constitutedefinite
propositions by the government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar matters affecting
national security and public order. x x x[46] (Emphasis and underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under
recognized exceptions. The privilege for diplomatic negotiations is clearly among the recognized exceptions, for
the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege

It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the
demands of members of Congress for information, the Court shall now determine whether petitioners have shown
the existence of a public interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account. One is the
presumed public interest in favor of keeping the subject information confidential, which is the reason for the
privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must
be shown by the party asking for information. [47]
The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may
be gathered from cases such as U.S. v. Nixon,[48] Senate Select Committee on Presidential Campaign Activities v.
Nixon,[49] and In re Sealed Case.[50]
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the
subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such claim of
privilege against the constitutional duty of courts to ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a
criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts. A Presidents acknowledged need for
confidentiality in the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may be totally
frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily shown to have some bearing on the
pending criminal cases. (Emphasis, italics and underscoring supplied)
Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the presidential communications
privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with
the duty of Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure that the
President and those upon whom he directly relies in the performance of his duties could continue to
work under a general assurance that their deliberations would remain confidential. So long as the
presumption that the public interest favors confidentiality can be defeated only by
astrong showing of need by another institution of government- a showing that the
responsibilities of that institution cannot responsibly be fulfilled without access to
records of the President's deliberations- we believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. x x x (Emphasis and underscoring supplied)
In re Sealed Case[52] involved a claim of the deliberative process and presidential communications
privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court
stated:
The deliberative process privilege is a qualified privilege and can be overcome
by a sufficient showing of need. This need determination is to be made flexibly on a
case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the
district court must undertake a fresh balancing of the competing interests," taking into account
factors such as "the relevance of the evidence," "the availability of other evidence,"
"the seriousness of the litigation," "the role of the government," and the "possibility of
future timidity by government employees. x x x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and sufficient showing of need referred to in the immediately cited
cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this
standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process
effectively results in the bargaining away of their economic and property rights without their knowledge and
participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for
the people to have access to the initial offers exchanged during the negotiations since only through such disclosure
can their constitutional right to effectively participate in decision-making be brought to life in the context of
international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question
of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting
to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these alleged
consultations as woefully selective and inadequate.[53]
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives
have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents
bearing on them is, as petitioners claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to
the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not

yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has
already been, in the words of PMPF v. Manglapus, ample opportunity for discussion before [the treaty] is approved.
The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be
able to meaningfully exercise their right to participate in decision-making unless the initial offers are also
published.
It is of public knowledge that various non-government sectors and private citizens have already publicly expressed
their views on the JPEPA, their comments not being limited to general observations thereon but on its specific
provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet. [54] Given these
developments, there is no basis for petitioners claim that access to the Philippine and Japanese offers is essential
to the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the
subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or
international. They allege that Congress cannot meaningfully exercise the power to regulate international trade
agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since
whatever power and authority the President has to negotiate international trade agreements is derived only by
delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.[55]
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and
international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it
provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article on the
Executive Department which states:
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.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ
of the nation in its external relations, was echoed in BAYAN v. Executive Secretary[56] where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of
State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nation's foreign policy; his "dominance
in the field of foreign relations is (then) conceded." Wielding vast powers and influence,
his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether.
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at least
two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and
the subsequent ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic powers granted him no
less than by the fundamental law itself. Into the field of negotiation the Senate cannot
intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; emphasis
and underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary[57] where the Court ruled:
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations. In the realm of treaty-making, the President has the sole authority to negotiate
with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the
President only by delegation of that body, it has long been recognized that the power to enter into treaties is
vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade
agreements with foreign nations provided under P.D. 1464 [58] may be interpreted as an acknowledgment of
a power already inherent in its office. It may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.

This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of
Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the
relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative powers, may
not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such
pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its
conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of
checking the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of
Representatives fail to present a sufficient showing of need that the information sought is critical to the
performance of the functions of Congress, functions that do not include treaty-negotiation.
Respondents alleged failure to timely claim executive privilege
On respondents invocation of executive privilege, petitioners find the same defective, not having been done
seasonably as it was raised only in their Comment to the present petition and not during the House Committee
hearings.
That respondents invoked the privilege for the first time only in their Comment to the present petition does
not mean that the claim of privilege should not be credited.Petitioners position presupposes that an assertion of
the privilege should have been made during the House Committee investigations, failing which respondents are
deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents
subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA
would be released once the text thereof is settled and complete. There was no intimation that the requested copies
are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by
the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied
by precise and certain reasons for preserving the confidentiality of the information being sought.
Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed
as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents
received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And
as priorlystated, the House Committee itself refrained from pursuing its earlier resolution to issue a
subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson
Congressman Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials out of
respect for their office until resort to it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress power of inquiry. [59] So long as Congress itself finds no cause to
enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke
the privilege during the House Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents Comment to this petition fails to
satisfy in full the requirement laid down in Senate v. Ermitathat the claim should be invoked by the President or
through the Executive Secretary by order of the President.[60] Respondents claim of privilege is being sustained,
however, its flaw notwithstanding, because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him
adding the phrase by order of the President, shall be considered as partially complying with the requirement laid
down in Senate v. Ermita. The requirement that the phrase by order of the President should accompany the
Executive Secretarys claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the petition. [61] A strict application of this
requirement would thus be unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to
information against any abuse of executive privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not
to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise
thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently
addressed above.
1. After its historical discussion on the allocation of power over international trade agreements in the United States,
the dissent concludes that it will be turning somersaults with history to contend that the President is the sole organ
for external relations in that jurisdiction. With regard to this opinion, We make only the following observations:
There is, at least, a core meaning of the phrase sole organ of the nation in its external relations which is not being
disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that Congress has the power to regulate commerce with
foreign nationsbut does not have the power to negotiate international agreements directly.[62]
What is disputed is how this principle applies to the case at bar.

The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA
documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be
prevented from gaining access to these documents.
On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO[63] and in other
cases both before and since should be applied:
This Court has long and consistently adhered to the legal maxim that those that cannot
be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the
clear statutory prohibition against a direct government guarantee would not only make a
mockery of what the BOT Law seeks to prevent -- which is to expose the government to the
risk of incurring a monetary obligation resulting from a contract of loan between the project
proponent and its lenders and to which the Government is not a party to -- but would also
render the BOT Law useless for what it seeks to achieve - to make use of the resources of
the private sector in the financing, operation and maintenance of infrastructure and development
projects which are necessary for national growth and development but which the government,
unfortunately, could ill-afford to finance at this point in time. [64]
Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to
participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the point of giving
them access to the offers exchanged between the Japanese and Philippine delegations would have made a
mockery of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it
vested the power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power of the
President, which our Constitution similarly defines, may be gathered from Hamiltons explanation of why the U.S.
Constitution excludes the House of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous composition of
that body, forbid us to expect in it those qualities which are essential to the proper execution of
such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic
adherence to the same views; a nice and uniform sensibility to national character,
decision,secrecy and dispatch; are incompatible with a body so variable and so numerous. The
very complication of the business by introducing a necessity of the concurrence of so many
different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the
house of representatives, and the greater length of time which it would often be necessary to keep
them together when convened, to obtain their sanction in the progressive stages of a treaty, would
be source of so great inconvenience and expense, as alone ought to condemn the project.[65]
These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S.,
does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in that
body the power to concur in the validity of the treaty after negotiations have been concluded. [66] Much less,
therefore, should it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would
set a precedent for future negotiations, leading to the contravention of the public interests articulated above which
the Constitution sought to protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the
subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in
the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the
negotiations were still pending;
In their Comment, respondents contend that the negotiations of the representatives of the Philippines as
well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict confidentiality. That respondents liken
the documents involved in the JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the
conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has been promulgated by the
courts. The same holds true with respect to working drafts of opinions, which are comparable to intraagency recommendations. Such intra-agency recommendations are privileged even after the position under
consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the inter-agency and intra-agency
communications during the stage when common assertions are still being formulated. [67]
3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown
their need for the same documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena
the documents. This strongly undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the
House Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did
in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of
individual Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that
Congress itself finds the subject information to be critical to its legislative functions.

Further, given that respondents have claimed executive privilege, petitioner-members of the House of
Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over
which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon[68] held,
the showing required to overcome the presumption favoring confidentiality turns, not only on the nature and
appropriateness of the function in the performance of which the material was sought, but also the degree to which
the material was necessary to its fulfillment.This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published,
petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may
see fit. Since such publication, petitioners need, if any, specifically for the Philippine and Japanese offers leading to
the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends
that the Executive has failed to show how disclosing them afterthe conclusion of negotiations would impair the
performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with
the general presumption of transparency, the burden is initially on the Executive to provide precise and certain
reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought
are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege
by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations
pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need
for the information sufficient to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege by order of
the President, the same may not be strictly applied to the privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying
down a new rule for which there is no counterpart even in theUnited States from which the concept of executive
privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,[69] citing In re
Sealed Case,[70] the issue of whether a President must personally invoke the [presidential communications]
privilege remains an open question. U.S. v. Reynolds,[71] on the other hand, held that [t]here must be a formal claim
of privilege, lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer.
The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of
preventing the abuse of the privilege in light of its highly exceptional nature. The Courts recognition that the
Executive Secretary also bears the power to invoke the privilege, provided he does so by order of the President, is
meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on
executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule
in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate
v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court
therein erred in citing US v. Curtiss Wright[72] and the book entitled The New American Government and Its
Work[73] since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to
information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches
of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision
between governmental power over the conduct of foreign affairs and the citizens right to information.
That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of diplomatic negotiations
against congressional demands for information in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that the privileged character accorded to
diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative
conflict, but so did Chavez v. PEA[74] which held that the [publics] right to information . . . does not extend to
matters recognized as privileged information under the separation of powers. What counts as privileged
information in an executive-legislative conflict is thus also recognized as such in cases involving the publics right to
information.
Chavez v. PCGG[75] also involved the publics right to information, yet the Court recognized as a valid
limitation to that right the same privileged information based on separation of powers closed-door Cabinet
meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in the context of an executivelegislative conflict or a citizens demand for information, as closely intertwined, such that the principles applicable
to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each
context, this may give rise to the absurd result whereCongress would be denied access to a particular information
because of a claim of executive privilege, but the general public would have access to the same information, the
claim of privilege notwithstanding.

Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present danger test for the
assessment of claims of privilege against citizens demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the
State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is
covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of
need. This would lead to a situation where it would be more difficult for Congress to access executive
information than it would be for private citizens.
We maintain then that when the Executive has already shown that an information is covered by executive
privilege, the party demanding the information must present a strong showing of need, whether that party is
Congress or a private citizen.
The rule that the same showing of need test applies in both these contexts, however, should not be construed as a
denial of the importance of analyzing the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in
every particularinstance is highly significant in determining whether to uphold a claim of privilege. This need is,
precisely, part of the context in light of which every claim of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to executive privilege
controversies across different contexts, the Court in PMPF v. Manglapusdid not err when it cited the CurtissWright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not
have taken into account the expanded statutory right to information in the FOIA assumes that the observations in
that book in support of the confidentiality of treaty negotiations would be different had it been written after the
FOIA.Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that [i]t is more doubtful if the same book be used to calibrate the importance of the
right of access to information in the Philippine setting considering its elevation as a constitutional right, we submit
that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of
executive privilege which is itself constitutionally-based.[76] Hence, the comments in that book which were cited
in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used need as a test to uphold or allow inroads into rights
guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit
without using the term need.
In executive privilege controversies, the requirement that parties present a sufficient showing of need only means,
in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the
claim of privilege.[77] Verily, the Court in such cases engages in a balancing of interests. Such a balancing of
interests is certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice
v. Lantion,[78] which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the clear and present danger test to the present
controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to apply. It would appear that the only disagreement
is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that it suffices that information is of public concern for it to be covered by the
right, regardless of the publics need for the information, and that the same would hold true even if they simply
want to know it because it interests them. As has been stated earlier, however, there is no dispute that the
information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of
public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as
an international trade agreement.
However, when the Executive has as in this case invoked the privilege, and it has been established that the
subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely
asserting that the information being demanded is a matter of public concern, without any further showing
required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever
as a limitation on the right to information, because then the sole test in such controversies would be whether an
information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA
negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese
representatives, indeed, by the Japanese government itself. How would the Philippine government then explain
itself when that happens? Surely, it cannot bear to say that it just had to release the information because certain
persons simply wanted to know it because it interests them.
Thus, the Court holds that, in determining whether an information is covered by the right to information, a
specific showing of need for such information is not a relevant consideration, but only whether the same is a
matter of public concern. When, however, the government has claimed executive privilege, and it has established
that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege,
must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to
effectively and reasonably participate in social, political, and economic decision-making. [79]
7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the people can exercise
their right to participate in the discussion whether the Senate should concur in its ratification or not. (Emphasis
supplied) It adds that this right will be diluted unless the people can have access to the subject JPEPA
documents. What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a

recognition of the qualified nature of the publics right to information. It is beyond dispute that the right to
information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate
that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they
have been able to articulate their different opinions without need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re
Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that
the U.S. Court was there addressing only the Presidents assertion of privilege in the context of a criminal trial, not a
civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts
must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that
the principles applied in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts
other than a criminal trial, as in the case of Nixon v. Administrator of General Services [80] which involved former
President Nixons invocation of executive privilege to challenge the constitutionality of the Presidential Recordings
and Materials Preservation Act[81] and the above-mentioned In re Sealed Case which involved a claim of privilege
against a subpoena duces tecum issued in a grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already
mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability[82] a case involving an executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with the balance between the Presidents generalized
interest in confidentiality and congressional demands for information, [n]onetheless the [U.S.] Court laid down
principles and procedures that can serve as torch lights to illumine us on the scope and use of
Presidential communication privilege in the case at bar. [83] While the Court was divided in Neri, this opinion
of the Chief Justice was not among the points of disagreement, and We similarly hold now that the Nixon case is a
useful guide in the proper resolution of the present controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it should also give full
recognition to the validity of the privilege whenever it is claimed within the proper bounds of
executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be
perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the
point of irrelevance.
Conclusion
To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has become moot and
academic, it having been made accessible to the public sinceSeptember 11, 2006. As for their demand for copies
of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13,
1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the
application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners both
private citizens and members of the House of Representatives have failed to present a sufficient showing of
need to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents Comment to the present petition, and not during
the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a
waiver of the privilege on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate
v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary by order
of the President.
WHEREFORE, the petition is DISMISSED. SO ORDERED.

3. COMMANDER-IN-CHIEF CLAUSE
CASE: GUDANI VS SENGA, GR NO. 170516, AUG 15, 2006
EN BANC
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their superior officers
are exempt from the strictures of military law and discipline if such defiance is predicated on an act otherwise valid
under civilian law. Obedience and deference to the military chain of command and the President as commander-inchief are the cornerstones of a professional military in the firm cusp of civilian control. These values of obedience
and deference expected of military officers are content-neutral, beyond the sway of the officers own sense of what
is prudent or rash, or more elementally, of right or wrong. A self-righteous military invites itself as the scoundrels
activist solution to the ills of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo [1] enjoining them and
other military officers from testifying before Congress without the Presidents consent. Petitioners also pray for

injunctive relief against a pending preliminary investigation against them, in preparation for possible court-martial
proceedings, initiated within the military justice system in connection with petitioners violation of the
aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that center
on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be addressed to the
satisfaction of petitioners, the Court recognizes these values as of paramount importance to our civil society, even
if not determinative of the resolution of this petition. Had the relevant issue before us been the right of the Senate
to compel the testimony of petitioners, the constitutional questions raised by them would have come to fore. Such
a scenario could have very well been presented to the Court in such manner, without the petitioners having had to
violate a direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may be
subjected to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners, Brigadier
General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the
Philippine Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were assigned to the
Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent, and the latter as
the Assistant Commandant of Cadets.[2]
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to appear at
a public hearing before the Senate Committee on National Defense and Security (Senate Committee) scheduled
on 28 September 2005. The hearing was scheduled after topics concerning the conduct of the 2004 elections
emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an audio
excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the
time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, of Joint
Task Force Ranao by the AFP Southern Command. Joint Task Force Ranao was tasked with the maintenance of
peace and order during the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur. [3] `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were among
the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28 September
2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be unable
to attend the hearing due to a previous commitment in Brunei, but he nonetheless directed other officers from the
AFP who were invited to attend the hearing.[4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to the
Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri
in behalf of Gen. Senga. [5] Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate
Committee hearing on 28 September 2005, the Memorandum directed the two officers to attend the hearing.
[6]
Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to the
PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the hearing
scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said hearing, and that
some of the invited officers also could not attend as they were attending to other urgent operational matters. By
this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the PMA
Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE
ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F
GUDANI AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY. [7]
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no approval
has been granted by the President to any AFP officer to appear before the hearing scheduled on that day.
Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they both testified as to
the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered additional
information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the couriers of
the AFP Command Center had attempted to deliver the radio message to Gen. Gudanis residence in a subdivision
in ParaaqueCity late in the night of 27 September 2005, but they were not permitted entry by the subdivision
guards. The next day, 28 September 2005, shortly before the start of the hearing, a copy of Gen. Sengas letter to
Sen. Biazon sent earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office
for Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga called
Commodore Tolentino on the latters cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In
response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani
still refused to take Gen. Sengas call.[8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a
statement which noted that the two had appeared before the Senate Committee in spite of the fact that a guidance
has been given that a Presidential approval should be sought prior to such an appearance; that such directive was
in keeping with the time[-]honored principle of the Chain of Command; and that the two officers disobeyed a legal
order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to
General Court Martial proceedings x x x Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then.[9]

On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive Order No.
464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the executive department including the military
establishment from appearing in any legislative inquiry without her approval. [10] This Court subsequently ruled on
the constitutionality of the said executive order in Senate v. Ermita.[11] The relevance of E.O. 464 and Senate to the
present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry A.
Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal General (OPMG)
on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both petitioners invoked their
right to remain silent.[12] The following day, Gen. Gudani was compulsorily retired from military service, having
reached the age of 56.[13]
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged with
violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War 97, on conduct
prejudicial to the good order and military discipline. [14] As recommended, the case was referred to a Pre-Trial
Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM). [15] Consequently, on 24 October
2005, petitioners were separately served with Orders respectively addressed to them and signed by respondent
Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in
person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of Articles 65 [16] and 97[17] of
Commonwealth Act No. 408,[18] and to submit their counter-affidavits and affidavits of witnesses at the Office of the
Judge Advocate General.[19] The Orders were accompanied by respective charge sheets against petitioners,
accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed, particularly
seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from testifying
before Congress without her prior approval be declared unconstitutional; (2) the charges stated in the charge
sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest
or persons acting for and on their behalf or orders, be permanently enjoined from proceeding against petitioners,
as a consequence of their having testified before the Senate on 28 September 2005. [20]
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP personnel
appear before Congress as a gag order, which violates the principle of separation of powers in government as it
interferes with the investigation of the Senate Committee conducted in aid of legislation. They also equate the gag
order with culpable violation of the Constitution, particularly in relation to the publics constitutional right to
information and transparency in matters of public concern. Plaintively, petitioners claim that the Filipino people
have every right to hear the [petitioners] testimonies, and even if the gag order were unconstitutional, it still was
tantamount to the crime of obstruction of justice. Petitioners further argue that there was no law prohibiting them
from testifying before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to
conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on account of his
compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the Articles of War defines
persons subject to military law as all officers and soldiers in the active service of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in violating
Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering that per records,
petitioners have not yet been subjected to court martial proceedings. Owing to the absence of such proceedings,
the correct inquiry should be limited to whether respondents could properly initiate such proceedings preparatory
to a formal court-martial, such as the aforementioned preliminary investigation, on the basis of petitioners acts
surrounding their testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle
that it is not a trier of facts at first instance, [21] is averse to making any authoritative findings of fact, for that
function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been commonly alleged
by petitioners and the OSG (for respondents). Petitioners were called by the Senate Committee to testify in its 28
September 2005 hearing. Petitioners attended such hearing and testified before the Committee, despite the fact
that the day before, there was an order from Gen. Senga (which in turn was sourced per instruction from President
Arroyo) prohibiting them from testifying without the prior approval of the President. Petitioners do not precisely
admit before this Court that they had learned of such order prior to their testimony, although the OSG asserts that
at the very least, Gen. Gudani already knew of such order before he testified. [22] Yet while this fact may be
ultimately material in the court-martial proceedings, it is not determinative of this petition, which as stated earlier,
does not proffer as an issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen. Senga, which
emanated from the President, could lead to any investigation for court-martial of petitioners. It has to be
acknowledged as a general principle[23] that AFP personnel of whatever rank are liable under military law for
violating a direct order of an officer superior in rank. Whether petitioners did violate such an order is not for the
Court to decide, but it will be necessary to assume, for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present
petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464,
but instead, they were charged for violating the direct order of Gen. Senga not to appear before the
Senate Committee, an order that stands independent of the executive order. Distinctions are called for,
since Section 2(b) of E.O. 464 listed generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive privilege, as among those public

officials required in Section 3 of E.O. 464 to secure prior consent of the President prior to appearing before either
House of Congress. The Court in Senate declared both Section 2(b) and Section 3 void, [24] and the impression may
have been left following Senate that it settled as doctrine, that the President is prohibited from requiring military
personnel from attending congressional hearings without having first secured prior presidential consent. That
impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by significant
limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval
before appearing before Congress, the notion of executive control also comes into consideration. [25] However, the
ability of the President to require a military official to secure prior consent before appearing before Congress
pertains to a wholly different and independent specie of presidential authoritythe commander-in-chief powers of
the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered
by the same degree of restriction as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well as the
issues raised herein. The decision in Senate was rendered with the comfort that the nullification of portions of E.O.
464 would bear no impact on the present petition since petitioners herein were not called to task for violating the
executive order. Moreover, the Court was then cognizant that Senate and this case would ultimately hinge on
disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the faculty of the President,
under the aegis of the commander-in-chief powers [26] to require military officials from securing prior consent before
appearing before Congress. The pertinent factors in considering that question are markedly outside of those which
did become relevant in adjudicating the issues raised in Senate. It is in this petition that those factors come into
play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter. General
Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement
last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to
military law as, among others, all officers and soldiers in the active service of the [AFP], and points out that he is
no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where the Court declared that
an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of
military authorities when military justice proceedings were initiated against him before the termination of his
service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the
Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of
the alleged offenses. This jurisdiction having been vested in the military authorities, it is retained
up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction
once acquired is not lost upon the instance of the parties but continues until the case is
terminated.[28]
Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage
which goes against the contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further been held,
and is now settled law, in regard to military offenders in general, that if the military
jurisdiction has once duly attached to them previous to the date of the termination
of their legal period of service, they may be brought to trial by court-martial after
that date, their discharge being meanwhile withheld. This principle has mostly
been applied to cases where the offense was committed just prior to the end of the
term. In such cases the interests of discipline clearly forbid that the offender should
go unpunished. It is held therefore that if before the day on which his
service legally terminates and his right to a discharge is complete,
proceedings with a view to trial are commenced against him as by arrest
or the service of charges, the military jurisdiction will fully attach and
once attached may be continued by a trial by court-martial ordered and
held after the end of the term of the enlistment of the accused x x x [29]
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the
initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no
reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No.
1638, as amended, [a]n officer or enlisted man carried in the retired list [of the Armed Forces of the Philippines]
shall be subject to the Articles of War x x x[30] To this citation, petitioners do not offer any response, and in fact have
excluded the matter of Gen. Gudanis retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to
their appearance before the Senate, claiming that it violates the constitutional right to information and
transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of obstruction of
justice and grave coercion. However, the proper perspective from which to consider this issue entails the
examination of the basis and authority of the President to issue such an order in the first place to members of the
AFP and the determination of whether such an order is subject to any limitations.

The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the
democratic way of life, to civilian supremacy over the military, and to the general stability of our representative
system of government. The Constitution reposes final authority, control and supervision of the AFP to the President,
a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part
of the organic duties imposed upon the office, the other functions being clearly civil in nature. [31] Civilian
supremacy over the military also countermands the notion that the military may bypass civilian authorities, such
as civil courts, on matters such as conducting warrantless searches and seizures. [32]
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to
the legislative and executive branches of government in relation to military affairs. Military appropriations, as with
all other appropriations, are determined by Congress, as is the power to declare the existence of a state of war.
[33]
Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ of habeas
corpus.[34] The approval of the Commission on Appointments is also required before the President can promote
military officers from the rank of colonel or naval captain. [35] Otherwise, on the particulars of civilian dominance and
administration
over
the
military,
the
Constitution
is
silent,
except
for the commander-inchief clause which is fertile in meaning and implication as to whatever inherent martial authority the President may
possess.[36]
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which
begins with the simple declaration that [t]he President shall be the Commander-in-Chief of all armed forces of the
Philippines x x x[37] Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the
commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and
actions of the members of the armed forces. Such authority includes the ability of the President to restrict the
travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was ordered confined under
house arrest by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for
his house arrest, that he may not issue any press statements or give any press conference during his period of
detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It
cannot be gainsaid that certain liberties of persons in the military service, including the
freedom of speech, may be circumscribed by rules of military discipline. Thus, to a
certain degree, individual rights may be curtailed, because the effectiveness of the
military in fulfilling its duties under the law depends to a large extent on the
maintenance of discipline within its ranks. Hence, lawful orders must be followed
without question and rules must be faithfully complied with, irrespective of a soldier's
personal views on the matter. It is from this viewpoint that the restrictions imposed on petitioner
Kapunan, an officer in the AFP, have to be considered. [39]
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life circumscribes
several of the cherished freedoms of civilian life. It is part and parcel of the military package. Those who cannot
abide by these limitations normally do not pursue a military career and instead find satisfaction in other fields; and
in fact many of those discharged from the service are inspired in their later careers precisely by their rebellion
against the regimentation of military life. Inability or unwillingness to cope with military discipline is not a stain on
character, for the military mode is a highly idiosyncratic path which persons are not generally conscripted into, but
volunteer themselves to be part of. But for those who do make the choice to be a soldier, significant concessions to
personal freedoms are expected. After all, if need be, the men and women of the armed forces may be
commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated into the
democratic system of governance. The constitutional role of the armed forces is as protector of the people and of
the State.[40] Towards this end, the military must insist upon a respect for duty and a discipline without counterpart
in civilian life.[41] The laws and traditions governing that discipline have a long history; but they are founded on
unique military exigencies as powerful now as in the past. [42] In the end, it must be borne in mind that the armed
forces has a distinct subculture with unique needs, a specialized society separate from civilian society. [43] In the
elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and
diplomats. They are those of a world apart, a very ancient world, which exists in parallel with the
everyday world but does not belong to it. Both worlds change over time, and the warrior world
adopts in step to the civilian. It follows it, however, at a distance. The distance can never be closed,
for the culture of the warrior can never be that of civilization itself. [44]
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a superior
officer is punishable by court-martial under Article 65 of the Articles of War. [45] An individual soldier is not free to
ignore the lawful orders or duties assigned by his immediate superiors. For there would be an end of all discipline if
the seaman and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were
permitted to act upon their own opinion of their rights [or their opinion of the
Presidents intent], and to throw off the authority of the commander whenever they supposed it to be
unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed on free speech and
mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer from
speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the speech of a
soldier under his/her command will be accorded deference, with minimal regard if at all to the reason for such

restraint. It is integral to military discipline that the soldiers speech be with the consent and approval of the
military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to
speak freely on political matters. The Constitution requires that [t]he armed forces shall be insulated from partisan
politics, and that [n]o member of the military shall engage directly or indirectly in any partisan political activity,
except to vote.[47] Certainly, no constitutional provision or military indoctrination will eliminate a soldiers ability to
form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political
belief is a potential source of discord among people, and a military torn by political strife is incapable of fulfilling its
constitutional function as protectors of the people and of the State. For another, it is ruinous to military discipline
to foment an atmosphere that promotes an active dislike of or dissent against the President, the commander-inchief of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust. This
fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by regime
changes wherein active military dissent from the chain of command formed a key, though not exclusive, element.
The Court is not blind to history, yet it is a judge not of history but of the Constitution. The Constitution, and indeed
our modern democratic order, frown in no uncertain terms on a politicized military, informed as they are on the
trauma of absolute martial rule. Our history might imply that a political military is part of the natural order, but this
view cannot be affirmed by the legal order. The evolutionary path of our young democracy necessitates a
reorientation from this view, reliant as our socio-political culture has become on it. At the same time, evolution
mandates a similar demand that our system of governance be more responsive to the needs and aspirations of the
citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an undue influence
in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another necessary
restriction on members of the military. A soldier cannot leave his/her post without the consent of the commanding
officer. The reasons are self-evident. The commanding officer has to be aware at all times of the location of the
troops under command, so as to be able to appropriately respond to any exigencies. For the same reason,
commanding officers have to be able to restrict the movement or travel of their soldiers, if in their judgment, their
presence at place of call of duty is necessary. At times, this may lead to unsentimental, painful consequences, such
as a soldier being denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet
again, military life calls for considerable personal sacrifices during the period of conscription, wherein the higher
duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer before he/she
may leave his destination. A soldier who goes from the properly appointed place of duty or absents from his/her
command, guard, quarters, station, or camp without proper leave is subject to punishment by court-martial. [48] It is
even clear from the record that petitioners had actually requested for travel authority from the PMA
in Baguio City to Manila, to attend the Senate Hearing.[49] Even petitioners are well aware that it was necessary for
them to obtain permission from their superiors before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have discussed. They
seek to be exempted from military justice for having traveled to the Senate to testify before the Senate Committee
against the express orders of Gen. Senga, the AFP Chief of Staff. If petitioners position is affirmed, a considerable
exception would be carved from the unimpeachable right of military officers to restrict the speech and movement
of their juniors. The ruinous consequences to the chain of command and military discipline simply cannot warrant
the Courts imprimatur on petitioners position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military discipline.
After all, petitioners seek to impress on us that their acts are justified as they were responding to an invitation from
the Philippine Senate, a component of the legislative branch of government. At the same time, the order for them
not to testify ultimately came from the President, the head of the executive branch of government and the
commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces from testifying
before a legislative inquiry? We hold that the President has constitutional authority to do so, by virtue of her power
as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under
military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before
it of a military officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the
President. If the President is not so inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of the land which the President has
the duty to faithfully execute.[50]
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on
executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the President to prevent military officers from
testifying before Congress does not turn on executive privilege, but on the Chief Executives power as
commander-in-chief to control the actions and speech of members of the armed forces. The
Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in
executive privilege.

Our ruling that the President could, as a general rule, require military officers to seek presidential approval before
appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives
of the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as
budget appropriations and the approval of higher-rank promotions, [51] yet it is on the President that the Constitution
vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the Presidents ability to control the
individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between
obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to
choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the
commander-in-chief of the armed forces.[52]
At the same time, the refusal of the President to allow members of the military to appear before Congress is still
subject to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of
inquiries in aid of legislation. [53] Inasmuch as it is ill-advised for Congress to interfere with the Presidents power as
commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congresss right to conduct
legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite
the presidential prohibition. Yet the Court is aware that with its pronouncement today that the President has the
right to require prior consent from members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of the military
may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not
offend the Chief Executives prerogatives as commander-in-chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative creates
a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable
interplay between the legislative and executive branches, informed by due deference and respect as to their
various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that
one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch
of government, does not enjoy a similar dynamic with either the legislative or executive branches. Whatever
weakness inheres on judicial power due to its inability to originate national policies and legislation, such is
balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the
other branches of government.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55] among others,
the Court has not shirked from reviewing the exercise by Congress of its power of legislative inquiry.
[56]
Arnault recognized that the legislative power of inquiry and the process to enforce it, is an essential and
appropriate auxiliary to the legislative function. [57] On the other hand, Bengzon acknowledged that the power of
both houses of Congress to conduct inquiries in aid of legislation is not absolute or unlimited, and its exercise is
circumscribed by Section 21, Article VI of the Constitution. [58] From these premises, the Court enjoined the Senate
Blue Ribbon Committee from requiring the petitioners in Bengzon from testifying and producing evidence before
the committee, holding that the inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on
the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the
necessity of information in the legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise legislation on that subject, by parity
of reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.
As evidenced by the American experience during the so-called McCarthy era, however, the right of
Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts
certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such
inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid
such result as occurred in Bengzon is to indicate in its invitations to the public officials concerned,
or to any person for that matter, the possible needed statute which prompted the need for the
inquiry. Given such statement in its invitations, along with the usual indication of the subject of
inquiry and the questions relative to and in furtherance thereof, there would be less room for
speculation on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the
persons affected, even if they belong to the executive branch. Nonetheless, there may be
exceptional circumstances wherein a clear pattern of abuse of the legislative power of inquiry
might be established, resulting in palpable violations of the rights guaranteed to members of the
executive department under the Bill of Rights. In such instances, depending on the particulars of

each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial
sanction[59].
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from
testifying before Congress without the Presidents consent notwithstanding the invocation of executive privilege to
justify such prohibition. The Court did not rule that the power to conduct legislative inquiry ipso facto superseded
the claim of executive privilege, acknowledging instead that the viability of executive privilege stood on a case to
case basis. Should neither branch yield to the other branchs assertion, the constitutional recourse is to the courts,
as the final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or nonattendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member of
the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief to compel
the attendance. Such judicial action should be directed at the heads of the executive branch or the armed forces,
the persons who wield authority and control over the actions of the officers concerned. The legislative purpose of
such testimony, as well as any defenses against the same whether grounded on executive privilege, national
security or similar concerns would be accorded due judicial evaluation. All the constitutional considerations
pertinent to either branch of government may be raised, assessed, and ultimately weighed against each other. And
once the courts speak with finality, both branches of government have no option but to comply with the decision of
the courts, whether the effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between
the legislative and executive branches of government on the proper constitutional parameters of power. [60] This is
the fair and workable solution implicit in the constitutional allocation of powers among the three branches of
government. The judicial filter helps assure that the particularities of each case would ultimately govern, rather
than any overarching principle unduly inclined towards one branch of government at the expense of the other. The
procedure may not move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant
and cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review does not
preclude the legislative and executive branches from negotiating a mutually acceptable solution to the impasse.
After all, the two branches, exercising as they do functions and responsibilities that are political in nature, are free
to smooth over the thorns in their relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers before
Congress. Even if the President has earlier disagreed with the notion of officers appearing before the
legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the
courts.
Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on
them and other military officers not to testify before Congress without the Presidents consent. Yet these issues
ultimately detract from the main point that they testified before the Senate despite an order from their
commanding officer and their commander-in-chief for them not to do so, [61] in contravention of the traditions of
military discipline which we affirm today. The issues raised by petitioners could have very well been raised and
properly adjudicated if the proper procedure was observed. Petitioners could have been appropriately allowed to
testify before the Senate without having to countermand their Commander-in-chief and superior officer under the
setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their Commander-in-Chief
and Commanding General in obeisance to a paramount idea formed within their consciences, which could not be
lightly ignored. Still, the Court, in turn, is guided by the superlative principle that is the Constitution, the
embodiment of the national conscience. The Constitution simply does not permit the infraction which petitioners
have allegedly committed, and moreover, provides for an orderly manner by which the same result could have
been achieved without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.

LEGISLATIVE CONTEMPT
CASE: ARNAULT VS NAZARENO, GR NO. L-3820, JULY 18, 1950
EN BANC
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from his confinement in the New Bilibid Prison
to which he has been committed by virtue of a resolution adopted by the Senate on May 15, 1950, which reads as
follows:
Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the P440,000, as well
as answer other pertinent questions related to the said amount; Now, therefore, be it.
Resolved, that for his refusal to reveal the name of the person to whom he gave the P440,000 Jean L.
Arnault be committed to the custody of the Sergeant-at-Arms and imprisoned in the New Bilibid Prison,
Muntinlupa, Rizal, until discharged by further order of the Senate or by the special committee created by
Senate Resolution No. 8, such discharge to be ordered when he shall have purged the contempt by
revealing to the Senate or to the said special committee the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions in connection therewith.

The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be briefly stated as
follows:
In the latter part of October, 1949, the Philippine Government, through the Rural Progress Administration, bought
two estates known as Buenavista and Tambobong for the sums of P4,500,000 and P500,000, respectively. Of the
first sum, P1,000,000 was paid to Ernest H. Burt, a nonresident American, thru his attorney-in-fact in the
Philippines, the Associated Estates, Inc., represented by Jean L. Arnault, for alleged interest of the said Burt in the
Buenavista Estate. The second sum of P500,000 was all paid to the same Ernest H. Burt through his other attorneyin-fact, the North Manila Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest of the
said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine Government held a
25-year lease contract on said estate, with an option to purchase it for P3,000,000 within the same period of 25
years counted from January 1, 1939. The occupation Republic of the Philippines purported to exercise that option
by tendering to the owner the sum of P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944,
together with the accrued rentals amounting to P3224,000. Since 1939 the Government has remained in
possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to Ernest H. Burt, who
made a down payment of P10,000 only and agreed to pay P5000,000 within one year and the remainder in annual
installments of P500,000 each, with the stipulation that failure on his part to make any of said payments would
cause the forfeiture of his down payment of P10,000 and would entitle the Hospital to rescind to sale to him. Aside
from the down payment of P10,000, Burt has made no other payment on account of the purchase price of said
estate.
The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14, 1946, the Philippine
Trust Company sold estate for the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and promise to pay
P90,000 within nine months and the balance of P1,100,000 in ten successive installments of P110,000 each. The
nine-month period within which to pay the first installment of P90,000 expired on February 14, 1947, without Burt's
having paid the said or any other amount then or afterwards. On September 4, 1947, the Philippine Trust Company
sold, conveyed, and delivered the Tambobong Estate to the Rural Progress Administration by an absolute deed of
sale in consideration of the sum of P750,000. On February 5, 1948, the Rural Progress Administration made, under
article 1504 of the Civil Code, a notarial demand upon Burt for the resolution and cancellation of his contract of
purchase with the Philippine Trust Company due to his failure to pay the installment of P90,000 within the period of
nine months. Subsequently the Court of First Instance of Rizal ordered the cancellation of Burt's certificate of title
and the issuance of a new one in the name of the Rural Progress Administration, from which order he appealed to
the Supreme Court.1
It was in the face of the antecedents sketched in the last three preceding paragraphs that the Philippine
Government, through the Secretary of Justice as Chairman of the Board of Directors of the Rural Progress
Administration and as Chairman of the Board of Directors of the Philippine National Bank, from which the money
was borrowed, accomplished the purchase of the two estates in the latter part of October, 1949, as stated at the
outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows:
RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG
ESTATES DEAL.
WHEREAS, it is reported that the Philippine government, through the Rural Progress Administration, has
bought the Buenavista and the Tambobong Estates for the aggregate sum of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme Court dated October 31, 1949, the
Buenavista Estate could have been bought for three million pesos by virtue of a contract entered into
between the San Juan de Dios Hospital and Philippine Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did not have to purchase the Buenavista
Estate because the occupation government had made tender of payment in the amount of three million
pesos, Japanese currency, which fact is believed sufficient to vest title of Ownership in the Republic of the
Philippines pursuant to decisions of the Supreme Court sustaining the validity of payments made in
Japanese military notes during the occupation;
WHEREAS, it is reported that the Philippine Government did not have to pay a single centavo for the
Tambobong Estate as it was already practically owned by virtue of a deed of sale from the Philippine Trust
Company dated September 3, 194, for seven hundred and fifty thousand pesos, and by virtue of the
recission of the contract through which Ernest H. Burt had an interest in the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five members to be
appointed by the President of the Senate to investigate the Buenavista and Tambobong Estate deals. It
shall be the duty of the said Committee to determine whether the said purchase was honest, valid, and
proper and whether the price involved in the deal was fair and just, the parties responsible therefor, and
any other facts the Committee may deem proper in the premises. Said Committee shall have the power to
conduct public hearings; issue subpoena or subpoena duces tecum to compel the attendance of witnesses
or the production of documents before it; and may require any official or employee of any bureau, office,
branch, subdivision, agency, or instrumentality of the Government to assist or otherwise cooperate with
the Special Committee in the performance of its functions and duties. Said Committee shall submit its
report of findings and recommendations within two weeks from the adoption of this Resolution.
The special committee created by the above resolution called and examined various witnesses, among the most
important of whom was the herein petitioner, Jean L. Arnault. An intriguing question which the committee sought to

resolve was that involved in the apparent unnecessariness and irregularity of the Government's paying to Burt the
total sum of P1,500,000 for his alleged interest of only P20,000 in the two estates, which he seemed to have
forfeited anyway long before October, 1949. The committee sought to determine who were responsible for and
who benefited from the transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him on the afternoon of
October 29, 1949; that on the same date he opened a new account in the name of Ernest H. Burt with the
Philippine National Bank in which he deposited the two checks aggregating P1,500,000; and that on the same
occasion he draw on said account two checks; one for P500,000, which he transferred to the account of the
Associated Agencies, Inc., with the Philippine National Bank, and another for P440,000 payable to cash, which he
himself cashed. It was the desire of the committee to determine the ultimate recipient of this sum of P440,000 that
gave rise to the present case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the disposition of funds, I take
the position that the transactions were legal, that no laws were being violated, and that all requisites had
been complied with. Here also I acted in a purely functional capacity of representative. I beg to be excused
from making answer which might later be used against me. I have been assured that it is my constitutional
right to refuse to incriminate myself, and I am certain that the Honorable Members of this Committee, who,
I understand, are lawyers, will see the justness of my position.
At as subsequent session of the committee (March 16) Senator De Vera, a member of the committee, interrogated
him as follows:
Senator DE VERA. Now these transactions, according to your own typewritten statement, were legal?
Mr. ARNAULT. I believe so.
Senator DE VERA. And the disposition of that fund involved, according to your own statement, did not
violate any law?
Mr. ARNAULT. I believe so.
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Senator DE VERA. So that if the funds were disposed of in such a manner that no laws were violated, how is
it that when you were asked by the Committee to tell what steps you took to have this money delivered to
Burt, you refused to answer the questions, saying that it would incriminate you?
Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with other people.
xxx

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xxx

Senator DE VERA. Are you afraid to state how the money was disposed of because you would be
incriminated, or you would be incriminating somebody?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money that has been paid to
me as a result of a legal transaction without having to account for any use of it.
But when in the same session the chairman of the committee, Senator Sumulong, interrogated the petitioner, the
latter testified as follows:
The CHAIRMAN. The other check of P440,000 which you also made on October 29, 1949, is payable to
cash; and upon cashing this P440,000 on October 29, 1949, what did you do with that amount?
Mr. ARNAULT. I turned it over to a certain person.
The CHAIRMAN. The whole amount of P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Who was that certain person to whom you delivered these P440,000 which you cashed on
October 29, 1949?
Mr. ARNAULT. I don't remember the name; he was a representative of Burt.
The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a Filipino?
Mr. ARNAULT. I don't know.
The CHAIRMAN. You do not remember the name of that representative of Burt to whom you delivered this
big amount of P440,000?
Mr. ARNAULT. I am not sure; I do not remember the name.
The CHAIRMAN. That certain person who represented Burt to whom you delivered the big amount on
October 29, 1949, gave you a receipt for the amount?
Mr. ARNAULT. No.
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And why did you give that certain person, representative of Burt, this big amount of
P440,000 which forms part of the P1- million paid to Burt?
Mr. ARNAULT. Because I have instructions to that effect.
The CHAIRMAN. Who gave you the instruction?
Mr. ARNAULT. Burt.
The CHAIRMAN. Where is the instruction; was that in writing?
Mr. ARNAULT. No.
The CHAIRMAN. By cable?
Mr. ARNAULT. No.
The CHAIRMAN. In what form did you receive that instruction?
Mr. ARNAULT. Verbal instruction.

The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these P440,000 to a
certain person whose name you do not like to reveal?
Mr. ARNAULT. I have instruction to comply with the request of the person.
The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal?
Mr. ARNAULT. Yes.
The CHAIRMAN. When was that instruction given to you by Burt?
Mr. ARNAULT. Long time ago.
The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was still here in the
Philippines?
Mr. ARNAULT. Yes.
The CHAIRMAN. But at that time Burt already knew that he would receive the money?
Mr. ARNAULT. No.
The CHAIRMAN. In what year was that when Burt while he was here in the Philippines gave you the verbal
instruction?
Mr. ARNAULT. In 1946.
The CHAIRMAN. And what has that certain person done for Burt to merit receiving these P440,000?
Mr. ARNAULT. I absolutely do not know.
The CHAIRMAN. You do not know?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that certain person
should receive these P440,000?
Mr. ARNAULT. He did not tell me.
The CHAIRMAN. And Burt also authorized you to give this big amount to that certain person without
receipt?
Mr. ARNAULT. He told me that a certain person would represent him and where could I meet him.
The CHAIRMAN. Did Burt know already that certain person as early as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention in the prosecution of the two cases involving
the Buenavista and Tambobong estates?
Mr. ARNAULT. Not that I know of.
The CHAIRMAN. Is that certain person related to any high government official?
Mr. ARNAULT. No, I do not know.
The CHAIRMAN. Why can you not tell us the name of that certain person?
Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.
The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949, you knew already that
person?
Mr. ARNAULT. Yes, I have seen him several times.
The CHAIRMAN. And the name of that certain person is a Filipino name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a Spanish name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according to your recollection is Spanish; can you
remember the first letter with which that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have delivered this P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Several times?
Mr. ARNAULT. Two or three times.
The CHAIRMAN. Here in Manila?
Mr. ARNAULT. Yes.
The CHAIRMAN. And in spite of the fact that you met that person two or three times, you never were able
to find out what was his name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of course, we have not
done business. Lots of people in Manila know me, but they don't know my name, and I don't know them.
They sa{ I am "chiflado" because I don't know their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of that certain person? What is his complexion:
light, dark or light brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but smaller. He walks very
straight, with military bearing.
The CHAIRMAN. Do you know the residence of that certain person to whom you gave the P440,000?
Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that certain person, you never came to know his
residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.

On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and read to him the
following resolution:
Be it resolved by the Senate of the Philippines in Session assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting of contumacious
acts committed by him during the investigation conducted by the Special Committee created by Senate
Resolution No. 8 to probe the Tambobong and Buenavista estates deal of October 21, 1949, and that the
President of the Senate propounded to him the following interrogatories:
1. What excuse have you for persistently refusing to reveal the name of the person to whom you gave the
P440,000 on October 29, 1949, a person whose name it is impossible for you not to remember not only
because of the big amount of money you gave to him without receipt, but also by your own statements you
knew him as early as 1946 when General Ernest H. Burt was still in the Philippines, you made two other
deliveries of money to him without receipt, and the last time you saw him was in December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that the questions were
incriminatory in nature and begging leave to be allowed to stand on his constitutional right not to be compelled to
be a witness against himself. Not satisfied with that written answer Senator Sumulong, over the objection of
counsel for the petitioner, propounded to the latter the following question:
Sen. SUMULONG. During the investigation, when the Committee asked you for the name of that person to
whom you gave the P440,000, you said that you can [could] not remember his name. That was the reason
then for refusing to reveal the name of the person. Now, in the answer that you have just cited, you are
refusing to reveal the name of that person to whom you gave the P440,000 on the ground that your answer
will be self-incriminating. Now, do I understand from you that you are abandoning your former claim that
you cannot remember the name of that person, and that your reason now for your refusal to reveal the
name of that person is that your answer might be self-incriminating? In other words, the question is this:
What is your real reason for refusing to reveal the name of that person to whom you gave the P440,000:
that you do not remember his name or that your answer would be self-incriminating?
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Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the accused should not be
required to testify unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the question. The question is very clear. It does
not incriminate him.
xxx

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xxx

Mr. ARNAULT. I stand by every statement that I have made before the Senate Committee on the first,
second, and third hearings to which I was made in my letter to this Senate of May 2, 1950, in which I gave
all the reasons that were in my powers to give, as requested. I cannot change anything in those statements
that I made because they represent the best that I can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer has nothing to do with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you gave during the
investigation for not revealing the name of the person to whom you gave the P440,000 is not the same
reason that you are now alleging because during the investigation you told us: "I do not remember his
name." But, now, you are now saying: "My answer might incriminate me." What is your real position?
Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first, second, and third
hearings. I said that I wanted to be excused from answering the question. I beg to be excused from making
any answer that might be incriminating in nature. However, in this answer, if the detail of not remembering
the name of the person has not been included, it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you remember or not the name
of the person to whom you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that person, how can you say that your answer
might be incriminating? If you do not remember his name, you cannot answer the question; so how could
your answer be self-incriminating? What do you say to that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to answer those questions.
That is why I asked for a lawyer, so he can help me. I have no means of knowing what the situation is
about. I have been in jail 13 days without communication with the outside. How could I answer the
question? I have no knowledge of legal procedure or rule, of which I am completely ignorant.
xxx

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Sen. SUMULONG. Mr. President, I ask that the question be answered.

The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does not incriminate the
witness.
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Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be excused from making
further answer, please.

Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President of the Senate,
dated May 2, 1950, you stated there that you cannot reveal the name of the person to whom you gave the
P440,000 because if he is a public official you might render yourself liable for prosecution for bribery, and
that if he is a private individual you might render yourself liable for prosecution for slander. Why did you
make those statements when you cannot even tell us whether that person to whom you gave the P440,000
is a public official or a private individual ? We are giving you this chance to convince the Senate that all
these allegations of yours that your answers might incriminate you are given by you honestly or you are
just trying to make a pretext for not revealing the information desired by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The question is restated and explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it. That is all I can say how I
stand about this letter. I have no knowledge myself enough to write such a letter, so I had to secure the
help of a lawyer to help me in my period of distress.
In that same session of the Senate before which the petitioner was called to show cause why he should not be
adjudged guilty of contempt of the Senate, Senator Sumulong propounded to the petitioner questions tending to
elicit information from him as to the identity of the person to whom he delivered the P440,000; but the petitioner
refused to reveal it by saying that he did not remember. The President of the Senate then propounded to him
various questions concerning his past activities dating as far back as when witness was seven years of age and
ending as recently as the post liberation period, all of which questions the witness answered satisfactorily. In view
thereof, the President of the Senate also made an attempt to illicit the desired information from the witness, as
follows:
The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you deliver the P440,000
as a gift, or of any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least remembrance of the name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that happened a short time ago and, on the
other hand, you remember events that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted whereby the petitioner was
committed to the custody of the Sergeant-at-Arms and imprisoned until "he shall have purged the contempt by
revealing to the Senate or to the aforesaid Special Committee the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution (No. 16) , to wit:
That the Special Committee created by Senate Resolution No. 8 be empowered and directed to continue its
investigation of the Tambobong and Buenavista Estates deal of October 21, 1949, more particularly to
continue the examination of Jean L. Arnault regarding the name of the person to whom he gave the
P440,000 and other matters related therewith.
The first session of the Second Congress was adjourned at midnight on May 18, 1950.
The case was argued twice before us. We have given its earnest and prolonged consideration because it is the first
of its kind to arise since the Constitution of the Republic of the Philippines was adopted. For the first time this Court
is called upon to define the power of either House of Congress to punish a person not a member for contempt; and
we are fully conscious that our pronouncements here will set an important precedent for the future guidance of all
concerned.
Before discussing the specific issues raised by the parties, we deem it necessary to lay down the general principles
of law which form the background of those issues.
Patterned after the American system, our Constitution vests the powers of the Government in three independent
but coordinate Departments Legislative, Executive, and Judicial. The legislative power is vested in the Congress,
which consists of the Senate and the House of Representatives. (Section 1, Article VI.) Each house may determine
the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of
all its Members, expel a Member. (Section 10, Article VI.) The judicial power is vested in the Supreme Court and in
such inferior courts as may be established by law. (Section 1, Article VIII.) Like the Constitution of the United
States, ours does not contain an express provision empowering either of the two Houses of Congress to punish
nonmembers for contempt. It may also be noted that whereas in the United States the legislative power is shared
by and between the Congress of the United States, on the one hand, and the respective legislatures of the different
States, on the other the powers not delegated to the United States by the Constitution nor prohibited by it to
States being reserved to the States, respectively, or to the people in the Philippines, the legislative power is
vested in the Congress of the Philippines alone. It may therefore be said that the Congress of the Philippines has a
wider range of legislative field than the Congress of the United States or any State Legislature. Our form of
Government being patterned after the American system the framers of our Constitution having drawn largely
from American institutions and practices we can, in this case, properly draw also from American precedents in
interpreting analogous provisions of our Constitution, as we have done in other cases in the past. Although there is
no provision in the Constitution expressly investing either House of Congress with power to make investigations
and exact testimony to the end that it may exercise its legislative functions as to be implied. In other words, the
power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function.

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions
which the legislation is intended to effect or change; and where the legislative body does not itself possess the
requisite information which is not infrequently true recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often unavailing, and also that information
which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what
is needed. (McGrain vs. Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the Constitution
expressly gives to Congress the power to punish its Members for disorderly behavior, does not by necessary
implication exclude the power to punish for contempt any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L.
ed., 242.) But no person can be punished for contumacy as a witness before either House, unless his testimony is
required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than either the
Congress of the United States or a State Legislature, we think it is correct to say that the field of inquiry into which
it may enter is also wider. It would be difficult to define any limits by which the subject matter of its inquiry can be
bounded. It is not necessary to do so in this case. Suffice it to say that it must be coextensive with the range of the
legislative power.
In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to investigate the
Buenavista and Tambobong Estates deal is not challenged by the petitioner; and we entertain no doubt as to the
Senate's authority to do so and as to the validity of Resolution No. 8 hereinabove quoted. The transaction involved
a questionable and allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of
which Congress is the constitutional guardian. It also involved government agencies created by Congress to
regulate or even abolish. As a result of the yet uncompleted investigation, the investigating committee has
recommended and the Senate approved three bills (1) prohibiting the Secretary of Justice or any other department
head from discharging functions and exercising powers other than those attached to his own office, without ]
previous congressional authorization; (2) prohibiting brothers and near relatives of any President of the Philippines
from intervening directly or indirectly and in whatever capacity in transactions in which the Government is a party,
more particularly where the decision lies in the hands of executive or administrative officers who are appointees of
the President; and (3) providing that purchases of the Rural Progress Administration of big landed estates at a price
of P100,000 or more, shall not become effective without previous congressional confirmation. 2
We shall now consider and pass upon each of the questions raised by the petitioner in support of his contention
that his commitment is unlawful.
First He contends that the Senate has no power to punish him for contempt for refusing to reveal the name of the
person to whom he gave the P440,000, because such information is immaterial to, and will not serve, any intended
or purported legislation and his refusal to answer the question has not embarrassed, obstructed, or impeded the
legislative process. It is argued that since the investigating committee has already rendered its report and has
made all its recommendations as to what legislative measures should be taken pursuant to its findings, there is no
necessity to force the petitioner to give the information desired other than that mentioned in its report, to wit: "In
justice to Judge Quirino and to Secretary Nepomuceno, this atmosphere of suspicion that now pervades the public
mind must be dissipated, and it can only be done if appropriate steps are taken by the Senate to compel Arnault to
stop pretending that he cannot remember the name of the person to whom he gave the P440,000 and answer the
questions which will definitely establish the identity of that person . . ." Senator Sumulong, Chairman of the
Committee, who appeared and argued the case for the respondents, denied that that was the only purpose of the
Senate in seeking the information from the witness. He said that the investigation had not been completed,
because, due to the contumacy of the witness, his committee had not yet determined the parties responsible for
the anomalous transaction as required by Resolution No. 8; that, by Resolution No. 16, his committee was
empowered and directed to continue its investigation, more particularly to continue its examination of the witness
regarding the name of the person to whom he gave the P440,000 and other matters related therewith; that the
bills recommended by his committee had not been approved by the House and might not be approved pending the
completion of the investigation; and that those bills were not necessarily all the measures that Congress might
deem it necessary to pass after the investigation is finished.
Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the
investigating committee has the power to require a witness to answer any question pertinent to that inquiry,
subject of course to his constitutional right against self-incrimination. The inquiry, to be within the jurisdiction of
the legislative body to make, must be material or necessary to the exercise of a power in it vested by the
Constitution, such as to legislate, or to expel a Member; and every question which the investigator is empowered
to coerce a witness to answer must be material or pertinent to the subject of the inquiry or investigation. So a
witness may not be coerced to answer a question that obviously has no relation to the subject of the inquiry. But
from this it does not follow that every question that may be propounded to a witness must be material to any
proposed or possible legislation. In other words, the materiality of the question must be determined by its direct
relation to any proposed or possible legislation. The reason is, that the necessity or lack of necessity for legislative
action and the form and character of the action itself are determined by the sum total of the information to be
gathered as a result of the investigation, and not by a fraction of such information elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the power of the Court is limited to
determining whether the legislative body has jurisdiction to institute the inquiry or investigation; that once that
jurisdiction is conceded, this Court cannot control the exercise of that jurisdiction; and it is insinuated, that the
ruling of the Senate on the materiality of the question propounded to the witness is not subject to review by this
Court under the principle of the separation of powers. We have to qualify this proposition. As was said by the Court
of Appeals of New York: "We are bound to presume that the action of the legislative body was with a legitimate
object if it is capable of being so construed, and we have no right to assume that the contrary was intended."
(People ex rel. McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the
Supreme Court of the United States in the said case of McGrain vs. Daugherty, it is necessary deduction from the
decision in Re Chapman, 41 L. ed., 1154, that where the questions are not pertinent to the matter under inquiry a

witness rightfully may refuse to answer. So we are of the opinion that where the alleged immateriality of the
information sought by the legislative body from a witness is relied upon to contest its jurisdiction, the court is in
duty bound to pass upon the contention. The fact that the legislative body has jurisdiction or the power to make
the inquiry would not preclude judicial intervention to correct a clear abuse of discretion in the exercise of that
power.
Applying the criterion laid down in the last two preceding paragraphs to the resolution of the issue under
consideration, we find that the question for the refusal to answer which the petitioner was held in contempt by the
Senate is pertinent to the matter under inquiry. In fact, this is not and cannot be disputed. Senate Resolution No. 8,
the validity of which is not challenged by the petitioner, requires the Special Committee, among other things, to
determine the parties responsible for the Buenavista and Tambobong estates deal, and it is obvious that the name
of the person to whom the witness gave the P440,000 involved in said deal is pertinent to that determination it
is in fact the very thing sought to be determined. The contention is not that the question is impertinent to the
subject of the inquiry but that it has no relation or materiality to any proposed legislation. We have already
indicated that it is not necessary for the legislative body to show that every question propounded to a witness is
material to any proposed or possible legislation; what is required is that is that it be pertinent to the matter under
inquiry.
It is said that the Senate has already approved the three bills recommended by the Committee as a result of the
uncompleted investigation and that there is no need for it to know the name of the person to whom the witness
gave the P440,000. But aside from the fact that those bills have not yet been approved by the lower house and by
the President and that they may be withdrawn or modified if after the inquiry is completed they should be found
unnecessary or inadequate, there is nothing to prevent the Congress from approving other measures it may deem
necessary after completing the investigation. We are not called upon, nor is it within our province, to determine or
imagine what those measures may be. And our inability to do so is no reason for overruling the question
propounded by the Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The inquiry there in question was
conducted under a resolution of the Senate and related to charges, published in the press, that senators were
yielding to corrupt influences in considering a tariff bill then before the Senate and were speculating in stocks the
value of which would be affected by pending amendments to the bill. Chapman, a member of a firm of stock
brokers dealing in the stock of the American Sugar Refining Company, appeared before the committee in response
to a subpoena and asked, among others, the following questions:
Had the firm, during the month of March, 1894, bought or sold any stock or securities, known as sugar
stocks, for or in the interest, directly or indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the benefit of, or in the interest, directly or
indirectly, of any United Senate senator?
He refused to answer the questions and was prosecuted under an Act of Congress for contempt of the Senate.
Upon being convicted and sent to jail he petitioned the Supreme Court of the United States for a writ of habeas
corpus. One of the questions decided by the Supreme Court of the United States in that case was whether the
committee had the right to compel the witness to answer said questions, and the Court held that the committee
did have such right, saying:
The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolution directed the
committee to inquire whether any senator has been, or is, speculating in what are known as sugar stocks
during the consideration of the tariff bill now before the Senate." What the Senate might or might not do
upon the facts when ascertained, we cannot say, nor are we called upon to inquire whether such ventures
might be defensible, as contended in argument, but is plain that negative answers would have cleared that
body of what the Senate regarded as offensive imputations, while affirmative answers might have led to
further action on the part of the Senate within its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties responsible for the deal is incumbent upon the judicial
rather than upon the legislative branch. But we think there is no basis in fact or in law for such assumption. The
petitioner has not challenged the validity of Senate Resolution No. 8, and that resolution expressly requires the
committee to determine the parties responsible for the deal. We are bound to presume that the Senate has acted
in the due performance of its constitutional function in instituting the inquiry, if the act is capable of being so
construed. On the other hand, there is no suggestion that the judiciary has instituted an inquiry to determine the
parties responsible for the deal. Under the circumstances of the case, it appearing that the questioned transaction
was affected by the head of the Department of Justice himself, it is not reasonable to expect that the Fiscal or the
Court of First Instance of Manila will take the initiative to investigate and prosecute the parties responsible for the
deal until and unless the Senate shall determined those parties are and shall taken such measures as may be
within its competence to take the redress the wrong that may have been committed against the people as a result
of the transaction. As we have said, the transaction involved no less than P5,000,000 of public funds. That certainly
is a matter of a public concern which it is the duty of the constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the
proposed testimony of the witness called relates to that subject, obedience, to its process may be enforced by the
committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40 Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner, is not applicable
here. In that case the inquiry instituted by the House of Representatives of the United States related to a private
real-estate pool or partnership in the District of Columbia. Jay Cook and Company had had an interest in the pool
but become bankrupts, and their estate was in course of administration in a federal bankruptcy court in
Pennsylvania. The United States was one of their creditors. The trustee in the bankruptcy proceeding had effected
a settlement of the bankrupts' interest in the pool, and of course his action was subject to examination and

approval or disapproval by the bankruptcy court. Some of the creditors, including the United States, were
dissatisfied with the settlement. The resolution of the House directed the Committee "to inquire into the nature and
history of said real-estate pool and the character of said settlement, with the amount of property involve, in which
Jay Cooke and Co. were interested, and the amount paid or to be paid in said settlement, with power to send for
persons and papers, and report to this House." The Supreme Court of the United States, speaking thru Mr. Justice
Miller, pointed out that the resolution contained no suggestion of contemplated legislation; that the matter was one
in respect of which no valid legislation could be had; that the bankrupts' estate and the trustee's settlement were
still pending in the bankruptcy court; and that the United States and other creditors were free to press their claims
in that proceeding. And on these grounds the court held that in undertaking the investigation "the House of
Representatives not only exceeded the limit of its own authority, but assumed a power which could only be
properly exercised by another branch of the government, because the power was in its nature clearly judicial." The
principles announced and applied in that case are: that neither House of Congress possesses a "general power of
making inquiry into the private affairs of the citizen"; that the power actually possessed is limited to inquires
relating to matters of which the particular House has jurisdiction, and in respect of which it rightfully may take
other action; that if the inquiry relates to a matter wherein relief or redress could be had only by judicial
proceeding, it is not within the range of this power , but must be left to the court, conformably to the constitutional
separation of government powers.
That case differs from the present case in two important respects: (1) There the court found that the subject of the
inquiry, which related to a private real-estate pool or partnership, was not within the jurisdiction of either House of
Congress; while here if it is not disputed that the subject of the inquiry, which relates to a transaction involving a
questionable expenditure by the Government of P5,000,000 of public funds, is within the jurisdiction of the Senate,
(2) There the claim of the Government as a creditor of Jay Cooke and Company, which had had an interest in the
pool, was pending adjudication by the court; while here the interposition of the judicial power on the subject of the
inquiry cannot be expected, as we have pointed out above, until after the Senate shall have determined who the
parties responsible are and shall have taken such measures as may be within its competence to take to redress the
wrong that may have been committed against the people as a result of the transaction.
It is interesting to note that the decision in the case of Killbourn vs. Thompson has evoked strong criticisms from
legal scholars. (See Potts, Power of Legislative Bodies to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699;
James L. Land is, Constitutional Limitations on the Congressional Power of Investigation [1926], 40 Harvard L. Rev.,
153, 154, 214-220.) We quoted the following from Professor Land is' criticism: "Mr. Justice Miller saw the case
purely as an attempt by the House to secure to the Government certain priority rights as creditor of the bankrupt
concern. To him it assumed the character of a lawsuit between the Government and Jay Cooke and Co., with the
Government, acting through the House, attempting to override the orderliness of established procedure and
thereby prefer a creditors' bill not before the courts but before Congress. That bankruptcy proceedings had already
been instituted against Jay Cooke and Co., in a federal court gave added impetus to such a conception. The House
was seeking to oust a court of prior acquired jurisdiction by an extraordinary and unwarranted assumption of
"judicial power"! The broader aspect of the investigation had not been disclosed to the Court. That Jay Cooke and
Co.'s indebtedness and the particular funds in question were only part of the great administrative problem
connected with the use and disposition of public monies, that the particular failure was of consequence mainly in
relation to the security demanded for all government deposits, that the facts connected with one such default
revealed the possibility of other and greater maladministration, such considerations had not been put before the
Court. Nor had it been acquainted with the every-day nature of the particular investigation and the powers there
exerted by the House, powers whose exercise was customary and familiar in legislative practice. Instead of
assuming the character of an extraordinary judicial proceeding, the inquiry, place in its proper background, should
have been regarded as a normal and customary part of the legislative process. Detailed definiteness of legislative
purpose was thus made the demand of the court in Killbourn vs. Thompson. But investigators cannot foretell the
results that may be achieved. The power of Congress to exercise control over a real-estate pool is not a matter for
abstract speculation but one to be determined only after an exhaustive examination of the problem. Relationship,
and not their possibilities, determine the extent of congressional power. Constitutionality depends upon such
disclosures. Their presence, whether determinative of legislative or judicial power, cannot be relegated to
guesswork. Neither Congress nor the Court can predict, prior to the event, the result of the investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881. The question there
was whether the House of Representatives exceeded its power in punishing, as for contempt of its authority, the
District Attorney of the Southern District of New York, who had written, published, and sent to the chairman of one
of its committees an ill-tempered and irritating letter respecting the action and purposes of the committee in
interfering with the investigation by the grand jury of alleged illegal activities of a member of the House of
Representatives. Power to make inquires and obtain evidence by compulsory process was not involved. The court
recognized distinctly that the House of Representatives had implied power to punish a person not a member for
contempt, but held that its action in this instance was without constitutional justification. The decision was put on
the ground that the letter, while offensive and vexatious, was not calculated or likely to affect the House in any of
its proceedings or in the exercise of any of its functions. This brief statement of the facts and the issues decided in
that case is sufficient to show the inapplicability thereof to the present case. There the contempt involved
consisted in the district attorney's writing to the chairman of the committee an offensive and vexatious letter,
while here the contempt involved consists in the refusal of the witness to answer questions pertinent to the subject
of an inquiry which the Senate has the power and jurisdiction to make . But in that case, it was recognized that the
House of Representatives has implied power to punish a person not a member of contempt. In that respect the
case is applicable here in favor of the Senate's (and not of the Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate lacks authority to commit him for contempt for a
term beyond its period of legislative session, which ended on May 18, 1950. This contention is based on the
opinion of Mr. Justice Malcolm, concurred in by Justices Street and Villa-Real, in the case of Lopez vs. De los
Reyes (1930), 55 Phil., 170. In that case it appears that on October 23, 1929, Candido Lopez assaulted a member
of the House of Representatives while the latter was going to the hall of the House of Representatives to attend the

session which was then about to begin, as a result of which assault said representative was unable to attend the
sessions on that day and those of the two days next following by reason of the threats which Candido Lopez made
against him. By the resolution of the House adopted November 6, 1929, Lopez was declared guilty of contempt of
the House of Representatives and ordered punished by confinement in Bilibid Prison for a period of twenty-four
hours. That resolution was not complied with because the session of the House of Representatives adjourned at
midnight on November 8, 1929, and was reiterated at the next session on September 16, 1930. Lopez was
subsequently arrested, whereupon he applied for the writ of habeas corpus in the Court of First Instance of Manila,
which denied the application. Upon appeal to the Supreme Court, six justices voted to grant the writ: Justice
Malcolm, Street, and Villa-real, on the ground that the term of imprisonment meted out to the petitioner could not
legally be extended beyond the session of the body in which the contempt occurred; and Justices Johns, Villamor,
and Ostrand, on the ground that the Philippine Legislature had no power to punish for contempt because it was a
creature merely of an Act of the Congress of the United States and not of a Constitution adopted by the people.
Chief Justice Avancea, Justice Johnson, and Justice Romualdez wrote separate opinions, concurring with Justice
Malcolm, Street, and Villa-Real, that the Legislature had inherent power to punish for contempt but dissenting from
the opinion that the order of commitment could only be executed during the particular session in which the act of
contempt was committed.
Thus, on the question under consideration, the Court was equally divided and no decisive pronouncement was
made. The opinion of Mr. Justice Malcolm is based mainly on the following passage in the case of
Anderson vs.Dunn, supra:
And although the legislative power continues perpetual, the legislative body ceases to exist on the moment
of its adjournment or periodical dissolution. It follows that imprisonment must terminate with that
adjournment.
as well as on the following quotation from Marshall vs. Gordon, supra:
And the essential nature of the power also makes clear the cogency and application of the two limitations
which were expressly pointed out in Anderson vs. Dunn, supra, that is, that the power even when applied
to subjects which justified its exercise is limited to imprisonment and such imprisonment may not be
extended beyond the session of the body in which the contempt occurred.
Interpreting the above quotations, Chief Justice Avancea held:
From this doctrine it follows, in my judgement, that the imposition of the penalty is limited to the existence
of the legislative body, which ceases to function upon its final periodical dissolution. The doctrine refers to
its existence and not to any particular session thereof. This must be so, inasmuch as the basis of the power
to impose such penalty is the right which the Legislature has to self-preservation, and which right is
enforceable during the existence of the legislative body. Many causes might be conceived to constitute
contempt to the Legislature, which would continue to be a menace to its preservation during the existence
of the legislative body against which contempt was committed.
If the basis of the power of the legislature to punish for contempt exists while the legislative body
exercising it is in session, then that power and the exercise thereof must perforce continue until the final
adjournment and the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from Cooley's Constitutional Limitationsand
from Jefferson's Manual, is to the same effect. Mr. Justice Romualdez said: "In my opinion, where as in the case
before us, the members composing the legislative body against which the contempt was committed have not yet
completed their three-year term, the House may take action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by Justice Malcolm
areobiter dicta. Anderson vs. Dunn was an action of trespass against the Sergeant-at-Arms of the House of
Representatives of the United States for assault and battery and false imprisonment. The plaintiff had been
arrested for contempt of the House, brought before the bar of the House, and reprimanded by the Speaker, and
then discharged from custody. The question as to the duration of the penalty was not involved in that case. The
question there was "whether the House of Representatives can take cognizance of contempt committed against
themselves, under any circumstances." The court there held that the House of Representatives had the power to
punish for contempt, and affirmed the judgment of the lower court in favor of the defendant. In Marshall vs.Gordon,
the question presented was whether the House had the power under the Constitution to deal with the conduct of
the district attorney in writing a vexatious letter as a contempt of its authority, and to inflict punishment upon the
writer for such contempt as a matter of legislative power. The court held that the House had no such power
because the writing of the letter did not obstruct the performance of legislative duty and did not endanger the
preservation of the power of the House to carry out its legislative authority. Upon that ground alone, and not
because the House had adjourned, the court ordered the discharge of the petitioner from custody.
The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it appears that the
Senate had adopted a resolution authorizing and directing a select committee of five senators to investigate
various charges of misfeasance and nonfeasance in the Department of Justice after Attorney General Harry M.
Daugherty became its supervising head. In the course of the investigation the committee caused to be served on
Mally S. Daugherty, brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court
House, Ohio, a subpoena commanding him to appear before it for the purpose of giving testimony relating to the
subject under consideration. The witness failed to appear without offering any excuse for his failure. The
committee reported the matter to the Senate and the latter adopted a resolution, "That the President of the Senate
pro tempore issue his warrant commanding the Sergeant-at-Arms or his deputy to take into custody the body of
the said M.S. Daugherty wherever found, and to bring the said M.S. Daugherty before the bar of the Senate, then
and there to answer such questions pertinent to the matter under inquiry as the Senate may order the President of
the Senate pro tempore to propound; and to keep the said M.S. Daugherty in custody to await the further order of

the Senate." Upon being arrested, the witness petitioned the federal court in Cincinnati for a writ of habeas corpus.
The federal court granted the writ and discharged the witness on the ground that the Senate, in directing the
investigation and in ordering the arrest, exceeded its power under the Constitution. Upon appeal to the Supreme
Court of the United States, one of the contentions of the witness was that the case ha become moot because the
investigation was ordered and the committee was appointed during the Sixty-eighth Congress, which expired on
March 4, 1926. In overruling the contention, the court said:
. . . The resolution ordering the investigation in terms limited the committee's authority to the period of the
Sixty-eighth Congress; but this apparently was changed by a later and amendatory resolution authorizing
the committee to sit at such times and places as it might deem advisable or necessary. It is said in
Jefferson's Manual: "Neither House can continue any portion of itself in any parliamentary function beyond
the end of the session without the consent of the other two branches. When done, it is by a bill constituting
them commissioners for the particular purpose." But the context shows that the reference is to the two
houses of Parliament when adjourned by prorogation or dissolution by the King. The rule may be the same
with the House of Representatives whose members are all elected for the period of a single Congress: but it
cannot well be the same with the Senate, which is a continuing body whose members are elected for a
term of six years and so divided into classes that the seats of one third only become vacant at the end of
each Congress, two thirds always continuing into the next Congress, save as vacancies may occur through
death or resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may continue its
committees through the recess following the expiration of a Congress;" and, after quoting the above
statement from Jefferson's Manual, he says: "The Senate, however being a continuing body, gives authority
to its committees during the recess after the expiration of a Congress." So far as we are advised the select
committee having this investigation in charge has neither made a final report nor been discharged; nor has
been continued by an affirmative order. Apparently its activities have been suspended pending the decision
of this case. But, be this as it may, it is certain that the committee may be continued or revived now by
motion to that effect, and if, continued or revived, will have all its original powers. This being so, and the
Senate being a continuing body, the case cannot be said to have become moot in the ordinary sense. The
situation is measurably like that in Southern P. Terminal Co. vs. Interstate Commerce Commission, 219 U.
S., 498, 514-516; 55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the
enforcement of an order of the Interstate Commerce Commission did not become moot through the
expiration of the order where it was capable of repetition by the Commission and was a matter of public
interest. Our judgment may yet be carried into effect and the investigation proceeded with from the point
at which it apparently was interrupted by reason of the habeas corpus proceedings. In these circumstances
we think a judgment should be rendered as was done in the case cited.
What has been said requires that the final order in the District Court discharging the witness from custody
be reversed.
Like the Senate of the United States , the Senate of the Philippines is a continuing body whose members are
elected for a term of six years and so divided that the seats of only one-third become vacant every two years, twothirds always continuing into the next Congress save as vacancies may occur thru death or resignation. Members
of the House of Representatives are all elected for a term of four years; so that the term of every Congress is four
years. The Second Congress of the Philippines was constituted on December 30, 1949, and will expire on
December 30, 1953. The resolution of the Senate committing the Petitioner was adopted during the first session of
the Second Congress, which began on the fourth Monday of January and ended in May 18, 1950.
Had said resolution of commitment been adopted by the House of Representatives, we think it could be enforced
until the final adjournment of the last session of the Second Congress in 1953. We find no sound reason to limit the
power of the legislative body to punish for contempt to the end of every session and not to the end of the last
session terminating the existence of that body. The very reason for the exercise of the power to punish for
contempt is to enable the legislative body to perform its constitutional function without impediment or obstruction.
Legislative functions may be and in practice are performed during recess by duly constituted committees charged
with the duty of performing investigations or conducting hearing relative to any proposed legislation. To deny to
such committees the power of inquiry with process to enforce it would be to defeat the very purpose for which that
the power is recognized in the legislative body as an essential and appropriate auxiliary to is legislative function. It
is but logical to say that the power of self-preservation is coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the Senate, which is a continuing body and
which does not cease exist upon the periodical dissolution of the Congress or of the House of Representatives.
There is no limit as to time to the Senate's power to punish for contempt in cases where that power may
constitutionally be exerted as in the present case.
Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The Senate has
ordered an investigation of the Buenavista and Tambobong estates deal, which we have found it is within its
competence to make. That investigation has not been completed because of the refusal of the petitioner as a
witness to answer certain questions pertinent to the subject of the inquiry. The Senate has empowered the
committee to continue the investigation during the recess. By refusing to answer the questions, the witness has
obstructed the performance by the Senate of its legislative function, and the Senate has the power to remove the
obstruction by compelling the witness to answer the questions thru restraint of his liberty until he shall have
answered them. That power subsists as long as the Senate, which is a continuing body, persists in performing the
particular legislative function involved. To hold that it may punish the witness for contempt only during the session
in which investigation was begun, would be to recognize the right of the Senate to perform its function but at the
same time to deny to it an essential and appropriate means for its performance. Aside from this, if we should hold
that the power to punish for contempt terminates upon the adjournment of the session, the Senate would have to
resume the investigation at the next and succeeding sessions and repeat the contempt proceedings against the

witness until the investigation is completed-an absurd, unnecessary, and vexatious procedure, which should be
avoided.
As against the foregoing conclusion it is argued for the petitioner that the power may be abusively and
oppressively exerted by the Senate which might keep the witness in prison for life. But we must assume that the
Senate will not be disposed to exert the power beyond its proper bounds. And if, contrary to this assumption,
proper limitations are disregarded, the portals of this Court are always open to those whose rights might thus be
transgressed.
Third. Lastly, the petitioner invokes the privilege against self-incrimination. He contends that he would incriminate
himself if he should reveal the name of the person to whom he gave the P440,000 if that person be a public official
be (witness) might be accused of bribery, and if that person be a private individual the latter might accuse him of
oral defamation.
The ground upon which the witness' claim is based is too shaky, in firm, and slippery to afford him safety. At first he
told the Committee that the transactions were legal, that no laws were violated, and that all requisites had been
replied with; but at the time he begged to be excused from making answers "which might later be used against
me." A little later he explained that although the transactions were legal he refused to answer questions
concerning them "because it violates the right of a citizen to privacy in his dealings with other people . . . I simply
stand on my privilege to dispose of the money that has been paid to me as a result of a legal transaction without
having to account for the use of it." But after being apparently convinced by the Committee that his position was
untenable, the witness testified that, without securing any receipt, he turned over the P440,000 to a certain
person, a representative of Burt, in compliance with Burt's verbal instruction made in 1946; that as far as he know,
that certain person had nothing to do with the negotiations for the settlement of the Buenavista and Tambobong
cases; that he had seen that person several times before he gave him the P440,000 on October 29, 1949, and that
since then he had seen him again two or three times, the last time being in December, 1949, in Manila; that the
person was a male, 39 to 40 years of age, between 5 feet, 2 inches and 5 feet, 6 inches in height. Butt the witness
would not reveal the name of that person on these pretexts: " I don't remember the name; he was a representative
of Burt." "I am not sure; I don't remember the name."
We are satisfied that those answers of the witness to the important question, what is the name of that person to
whom you gave the P440,000? were obviously false. His insistent claim before the bar of the Senate that if he
should reveal the name he would incriminate himself, necessarily implied that he knew the name. Moreover, it is
unbelievable that he gave the P440,000 to a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt,
assuming that a refusal to testify would be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the
case of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was called to testify before a grand jury engaged in
investigating a charge of gambling against six other men. After stating that he was sitting at a table with said men
when they were arrested, he refused to answer two questions, claiming so to do might tend to incriminate him: (1)
"Was there a game of cards being played on this particular evening at the table at which you are sitting?" (2) "Was
there a game of cards being played at another table at this time?" The foreman of the grand jury reported the
matter to the judge, who ruled "that each and all of said questions are proper and that the answers thereto would
not tend to incriminate the witness." Mason was again called and refused to answer the first question propounded
to him, but, half yielding to frustration, he said in response to the second question: "I don't know." In affirming the
conviction for contempt, the Supreme Court of the United States among other things said:
In the present case, the witness certainly were not relieved from answering merely because they declared
that so to do might incriminate them. The wisdom of the rule in this regard is well illustrated by the
enforced answer, "I don't know ," given by Mason to the second question, after he had refused to reply
under a claim of constitutional privilege.
Since according to the witness himself the transaction was legal, and that he gave the P440,000 to a
representative of Burt in compliance with the latter's verbal instruction, we find no basis upon which to sustain his
claim that to reveal the name of that person might incriminate him. There is no conflict of authorities on the
applicable rule, to wit:
Generally, the question whether testimony is privileged is for the determination of the Court. At least, it is
not enough for the witness to say that the answer will incriminate him. as he is not the sole judge of his
liability. The danger of self-incrimination must appear reasonable and real to the court, from all the
circumstances, and from the whole case, as well as from his general conception of the relations of the
witness. Upon the facts thus developed, it is the province of the court to determine whether a direct
answer to a question may criminate or not. . . . The fact that the testimony of a witness may tend to show
that he has violated the law is not sufficient to entitle him to claim the protection of the constitutional
provision against self-incrimination, unless he is at the same time liable to prosecution and punishment for
such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for protection
against an imaginary danger, or to secure immunity to a third person. ( 3 Wharton's Criminal Evidence,
11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the facts and circumstances of the case whether
the witness is justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. App., 1939].) A
witness is not relieved from answering merely on his own declaration that an answer might incriminate
him, but rather it is for the trial judge to decide that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed.,
1193, 1200.)
As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty as a citizen to give
frank, sincere, and truthful testimony before a competent authority. The state has the right to exact fulfillment of a
citizen's obligation, consistent of course with his right under the Constitution. The witness in this case has been

vociferous and militant in claiming constitutional rights and privileges but patently recreant to his duties and
obligations to the Government which protects those rights under the law. When a specific right and a specific
obligation conflict with each other, and one is doubtful or uncertain while the other is clear and imperative, the
former must give way to the latter. The right to life is one of the most sacred that the citizen may claim, and yet
the state may deprive him of it if he violates his corresponding obligation to respect the life of others. As Mr. Justice
Johnson said in Anderson vs. Dunn: "The wretch beneath the gallows may repine at the fate which awaits him, and
yet it is not certain that the laws under which he suffers were made for the security." Paraphrasing and applying
that pronouncement here, the petitioner may not relish the restraint of his liberty pending the fulfillment by him of
his duty, but it is no less certain that the laws under which his liberty is restrained were made for his welfare.
From all the foregoing, it follows that the petition must be denied, and it is so ordered, with costs.

CASE: NORECO VS SANG. PANLUNSOD OF DUMAGUETE, 155 SCRA 421 (1987)

EN BANC
G.R. No. 72492 November 5, 1987
NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES and ARTURO UMBAC,petitioners,
vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC COMMITTEE OF THE SANGGUNIANG
PANLUNGSOD OF DUMAGUETE and ANTONIO S. RAMAS UYPITCHING, respondents.
CORTES, J.:
An attempt by the respondent Ad Hoc Committee of the respondent Sangguniang Panlungsod of Dumaguete to
punish non-members for legislative contempt was halted by this special civil action of certiorari and Prohibitionwith
Preliminary Injunction and/or Restraining Order questioning the very existence of the power in that local legislative
body or in any of its committees. On November 7, 1985, this Court issued a Temporary Restraining Order:
. . . enjoining respondents, their agents, representatives, and police and other peace officers acting
in their behalf, to refrain from compelling the attendance and testimony of Petitioners Paterio
Torres and Arturo Umbac at any and all future investigations to be conducted by aforesaid
respondents, and from issuing any contempt order if one has not been issued yet or from executing
any such contempt order if one has already been issued.
Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A", Petition) sent by the respondent
Committee to the petitioners Paterio Torres and Arturo Umbac, Chairman of the Board of Directors and the General
Manager, respectively, of petitioner Negros Oriental II Electric Cooperative NORECO II), requiring their attendance
and testimony at the Committee's investigation on October 29, 1985. Similarly under fire is the Order issued by the
same Committee on the latter date, (Annex "D", Petition) directing said petitioners to show cause why they should
not be punished for legislative contempt due to their failure to appear at said investigation.
The investigation to be conducted by respondent Committee was "in connection with pending legislation related to
the operations of public utilities" (Id.) in the City of Dumaguete where petitioner NORECO II, an electric
cooperative, had its principal place of business. Specifically, the inquiry was to focus on the alleged installation and
use by the petitioner NORECO II of inefficient power lines in that city (Comment, Rollo, p. 50). Respondent Antonio
S. Ramas Uypitching, as Chairman of the Committee on Public Utilities and Franchises and Co-Chairman of the
respondent Ad Hoc Committee, signed both the subpoena and the Order complained of. Petitioners moved to
quash the subpoena on the following grounds:
a. The power to investigate, and to order the improvement of, alleged inefficient power lines to
conform to standards is lodged exclusively with the National Electrification Administration; and
b. Neither the Charter of the City of Dumaguete nor the Local Government Code grants (the
Sangguniang Panlungsod) any specific power to investigate alleged inefficient power lines of
NORECO II. (Annex "C", Petition)
The motion to quash was denied in the assailed Order of October 29, 1985 directing the petitioners Torres and
Umbac to show cause why they should not be punished for contempt. Hence this Petition for certiorari
andProhibition with Preliminary Injunction and/or Restraining Order.
Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the power to compel
the attendance and testimony of witnesses, nor the power to order the arrest of witnesses who fail to obey
itssubpoena. It is further argued that assuming the power to compel the attendance and testimony of witnesses to
be lodged in said body, it cannot be exercised in the investigation of matters affecting the terms and conditions of
the franchise granted to NORECO II which are beyond the jurisdiction of the Sangguniang Panlungsod (Rollo pp. 78).
Respondents, for their part, claim that inherent in the legislative functions performed by the
respondentSangguniang Panlungsod is the power to conduct investigations in aid of legislation and with it, the
power to punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It is also the position of
the respondents that the contempt power, if not expressly granted, is necessarily implied from the powers granted
theSangguniang Panlungsod (Rollo, pp. 48-49). Furthermore, the respondents assert that an inquiry into the
installation or use of inefficient power lines and its effect on the power consumption cost on the part of Dumaguete
residents is well-within the jurisdiction of the Sangguniang Panlungsod and its committees.
1. A line should be drawn between the powers of Congress as the repository of the legislative power under the
Constitution, and those that may be exercised by the legislative bodies of local government unit, e.g.

theSangguniang Panlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative
power.While the Constitution does not expressly vest Congress with the power to punish non-members for
legislative contempt, the power has nevertheless been invoked by the legislative body as a means of preserving its
authority and dignity (Arnault v. Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the
same way that courts wield an inherent power to "enforce their authority, preserve their integrity, maintain their
dignity, and ensure the effectiveness of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723
[1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The exercise by Congress of this awesome power was
questioned for the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held
that the legislative body indeed possessed the contempt power.
That case arose from the legislative inquiry into the acquisition by the Philippine Government of the Buenavista
and Tambobong estates sometime in 1949. Among the witnesses called and examined by the special committee
created by a Senate resolution was Jean L. Arnault, a lawyer who delivered a portion of the purchase price to a
representative of the vendor. During the Senate, investigation, Amault refused to reveal the Identity of said
representative, at the same time invoking his constitutional right against self-incrimination. The Senate adopted a
resolution committing Arnault to the custody of the Sergeant at Arms and imprisoned "until he shall have purged
the contempt by revealing to the Senate . . . the name of the person to whom he gave the P440,000, as wen as
answer other pertinent questions in connection therewith." (Arnault v. Nazareno, 87 Phil. 29, 43 [1950]). Arnault
petitioned for a writ of Habeas Corpus.
In upholding the power of Congress to punish Arnault for contumacy the Court began with a discussion of the
distribution of the three powers of government under the 1935 Constitution. Cognizant of the fact that the
Philippines system of government under the 1935 Constitution was patterned after the American system, the Court
proceeded to resolve the issue presented, partly by drawing from American precedents, and partly by
acknowledging the broader legislative power of the Philippine Congress as compared to the U.S. Federal Congress
which shares legislative power with the legislatures of the different states of the American union (Id., pp. 44-45).
The Court held:
xxx xxx xxx
... (T)he power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or change; and
where the legislative body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who possess it. Experience has shown that
mere requests for such information are often unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of compulsion is essential to
obtain what is needed. (McGrain vs. Daugherty 273 U.S., 135; 71 L. ed., 580; 50 ALR 1) The fact
that the Constitution expressly gives to Congress the power to punish its Members for disorderly
behaviour, does not by necessary implication exclude the power to punish for contempt by any
person. (Anderson vs. Dunn, 6 Wheaton 204; 5 L. ed., 242)
But no person can be punished for contumacy as a witness before either House, unless his
testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs.
Thompson, 26, L.ed., 377.)
The Court proceeded to delve deeper into the essence of the contempt power of the Philippine Congress in a
subsequent decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same factual antecedents:
The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is
founded upon reason and policy. Said power must be considered implied or incidental to the
exercise of legislative power. How could a legislative body obtain the knowledge and information on
which to base intended legislation if it cannot require and compel the disclosure of such knowledge
and information, if it is impotent to punish a defiance of its power and authority? When the framers
of the Constitution adopted the principle of separation of powers, making each branch supreme
within the real of its respective authority, it must have intended each department's authority to be
full and complete, independently of the other's authority or power. And how could the authority and
power become complete if for every act of refusal every act of defiance, every act of contumacy
against it, the legislative body must resort to the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal therewith, with the affronts committed against its
authority or dignity. . . (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370 [1955]).
The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an unexplored
area of jurisprudence, and succeeded in supplying the raison d' etre of this power of Congress even in the absence
of express constitutional grant. Whether or not the reasons for upholding the existence of said power in Congress
may be applied mutatis mutandis to a questioned exercise of the power of contempt by the respondent committee
of a city council is the threshold issue in the present controversy.
3. The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the
government vested with the legislative power, independently of the judicial branch, asserts its authority and
punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative
bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power
attaches not to the discharge of legislative functions per se but to the character of the legislature as one of the
three independent and coordinate branches of government. The same thing cannot be said of local legislative
bodies which are creations of law.
4. To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code
(Batas Pambansa Blg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to

punish non-members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the
only possible justification for the issuance of a subpoena and for the punishment of non-members for contumacious
behaviour would be for said power to be deemed implied in the statutory grant of delegated legislative power. But,
the contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow
local legislative bodies or administrative agencies to exercise these powers without express statutory basis would
run afoul of the doctrine of separation of powers.
Thus, the contempt power, as well as the subpoena power, which the framers of the fundamental law did not
expressly provide for but which the then Congress has asserted essentially for self-preservation as one of three coequal branches of the government cannot be deemed implied in the delegation of certain legislative functions to
local legislative bodies. These cannot be presumed to exist in favor of the latter and must be considered as an
exception to Sec. 4 of B.P. 337 which provides for liberal rules of interpretation in favor of local autonomy. Since the
existence of the contempt power in conjunction with the subpoena power in any government body inevitably poses
a potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to testify, the
law cannot be liberally construed to have impliedly granted such powers to local legislative bodies. It cannot be
lightly presumed that the sovereign people, the ultimate source of all government powers, have reposed these
powers in all government agencies. The intention of the sovereign people, through their representatives in the
legislature, to share these unique and awesome powers with the local legislative bodies must therefore clearly
appear in pertinent legislation.
There being no provision in the Local Government Code explicitly granting local legislative bodies, the power to
issue compulsory process and the power to punish for contempt, the Sanggunian Panlungsod of Dumaguete is
devoid of power to punish the petitioners Torres and Umbac for contempt. The Ad-Hoc Committee of said
legislative body has even less basis to claim that it can exercise these powers.
5. Even assuming that the respondent Sangguniang Panlungsod and the respondent Ad-Hoc Committee had the
power to issue the subpoena and the order complained of, such issuances would still be void for being ultra
vires.The contempt power (and the subpoena power) if actually possessed, may only be exercised where the
subject matter of the investigation is within the jurisdiction of the legislative body (Arnault v.
Nazareno, supra, citing Kilbourn v. Thompson). As admitted by the respondents in their Comment, the investigation
to be conducted by the Ad-Hoc Committee was to look into the use by NORECO II of inefficient power lines "of prewar vintage" which the latter had acquired from the Visayan Electric Com. company, and "to hear the side of the
petitioners" (Comment, Rollo, p. 50). It comes evident that the inquiry would touch upon the efficiency of the
electric service of NORECO II and, necessarily, its compliance with the franchise. Such inquiry is beyond the
jurisdiction of the respondent Sangguniang Panlungsod and the respondent committee.
There is no doubt that a city government has the power to enact ordinances regulating the installation and
maintenance of electric power lines or wires within its territorial jurisdiction. The power subsists notwithstanding
the creation of the National Electrification Administration (NEA), to which body the franchise powers of local
government units were transferred by Presidential Decree No. 269. Section 42 of the Decree states:
SEC. 42. Repeal of Franchise Powers of Municipal City and Provincial Governments. The powers
of municipal, city and provincial governments to grant franchises, as provided for in Title 34 of the
Philippines Statutes or in any special law, are hereby repealed; Provided, That this section shall not
impair or invalidate any franchise heretofore lawfully granted by such a government or repeal any
other subsisting power of such governments to require that electric facilities and related properties
be so located, constructed and operated and maintained as to be safe to the public and not to
unduly interfere with the primary use of streets, roads, alleys and other public ways, buildings and
grounds over, upon or under which they may be built. (This Section was not among those amended
by Pres. Dec. Nos. 1370 [May 2, 1978] and 1645 [October 8, 1979]).
This particular power of the city government is included in the enumeration of powers and duties of a Sangguniang
Panlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337, February 10, 1983), to wit:
SEC. 177. Powers and Duties. The Sangguniang Panlungsod shall:
xxx xxx xxx
(j) . . . regulate the digging and excavation for the laying of gas, water, power, and other pipelines,
the building and repair of tunnels, sewers and drains, and all structures thereunder; the placing,
stringing, attaching, installing, repair and construction of all gas mains, electric, telegraph and
telephone wires, conduits meters and other apparatus, and the correction, condemnation of the
same when dangerous or defective;
xxx xxx xxx
The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the installation and
maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in order to protect the city
residents from the hazards these may pose. In aid of this ordinance making power, said body or any of its
committees may conduct investigations similar to, but not the same as, the legislative investigations conducted by
the national legislature. As already discussed, the difference lies in the lack of subpoena power and of the power to
punish for contempt on the part of the local legislative bodies. They may only invite resource persons who are
willing to supply information which may be relevant to the proposed ordinance. The type of investigation which
may be conducted by the Sangguniang PanLungsod does not include within its ambit an inquiry into any suspected
violation by an electric cooperative of the conditions of its electric franchise.
The power to inquire into the efficiency of the service supplied by electric cooperatives is within the franchising
powers of the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.:

(2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not then
furnishing, and is unable to or unailling within reasonable time to furnish adequate and dependable
service on an area coverage within such area;
xxx xxx xxx
In the exercise of this power, the NEA may conduct hearings and investigations, issle subpoenas and invoke the aid
of the courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269). Clearly, then, the Sangguniang
Panlungsod of Dumaguete cannot look into an suspected failure of NORECO II to comply with the standards of
electric service prescribed by law and in its franchise. The proper recourse is to file a complaint with the NEA
against NORECO II if there be sufficient basis therefor.
WHEREFORE, the subpoena dated October 25, 1985 requiring the attendance and testimony of the petitioners at
an investigation by the respondent Ad-Hoc Committee, and the Order issued by the latter on October 29, 1985
directing herein petitioners to show cause why they should not be punished for legislative contempt for their
disobedience of said subpoena, is declared null and void for being ultra vires. The respondent Sangguniang
Panlungsod and the respondent Ad-Hoc Committee are without power to punish non- members for contempt. The
Temporary Restraining Order issued by this Court on November 7, 1985 enjoining said respondents, their agents
and representatives, and the police and other peace officers from enforcing the aforesaid Order of the respondent
committee is made permanent. Petition is GRANTED. No costs.
SO ORDERED