JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R. OSMEA, WIGBERTO E. TAADA, and RONALDO B.

ZAMORA, petitioners,
vs.
JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO, THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE,
AND THE COMMISSIONER OF INTERNAL REVENUE, respondents.

G.R. No. 127255. June 26, 1998

291 SCRA 433

FACTS:

Petitioners seek a rehearing and reconsideration of the Courts decision dismissing their petition for certiorari and
prohibition. Basically, their contention is that when the Majority Leader (Rep. Rodolfo Albano) moved for the
approval of the conference committee report on the bill that became R.A. No. 8240, leading the Chair (Deputy
Speaker Raul Daza) to ask if there was any objection to the motion, and Rep. Joker P. Arroyo asked, What is that, Mr.
Speaker?, the Chair allegedly ignored him and instead declared the report approved.

ISSUE:

WON that the question What is that, Mr. Speaker? was a privileged question or a point of order which, under the
rules of the House, has precedence over other matters. So RA 8240 was passed without compliance to the Rules of
the House of Representative or that of the Conference Committee.

RULING:

No. Arroyo’s contention lacks merit. Rule XVI, 96 of the Rules of the House of Representatives provides that when a
member desires to speak, he shall rise and respectfully address the Chair Mr. Speaker. In the other hand, the Rules
of the Senate are even more emphatic. Rule XXVI, 59 says whenever a Senator wishes to speak, he shall rise and
request the President or the Presiding Officer to allow him to have the floor which consent shall be necessary before
he may proceed. Rep. Arroyo did not have the floor. Without first drawing the attention of the Chair, he simply stood
up and started talking. As a result, the Chair did not hear him and proceeded to ask if there were objections to the
Majority Leaders motion. Hearing none, he declared the report approved.

1
 ABAKADA GURO PARTY LIST (formerly AASJS) OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S.
ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his
capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as
Commissioner of Bureau of Customs, respondents.

G.R. No. 166715 August 14, 2008

562 SCRA 251

FACTS:

Petitioners seeks to prevent respondents from implementing and enforcing Republic Act (RA) 9335. R.A. 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). It covers all officials and employees of the BIR
and the BOC with at least six months of service, regardless of employment status.

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 “transforms 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.

ISSUES:

2
 1. Whether or not the scope of the system of rewards and incentives limitation to officials and employees of
the BIR and the BOC violates the constitutional guarantee of equal protection.
2. Whether or not there was an unduly delegation of power to fix revenue targets to the President.
3. Whether or not the doctrine of separation of powers has been violated in the creation of a congressional
oversight committee.

RULING:

1. No. 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. The equal protection clause recognizes a valid
classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.
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.

2. Yes. R.A. 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 under Sec 2 and 4 of the said Act.
Moreover, the Court has recognized the following as sufficient standards: “public interest,” “justice and
equity,” “public convenience and welfare” and “simplicity, economy and welfare.” 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.

3. The court declined jurisdiction on this case. 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.

3
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M.
FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
"COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE
ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III,
RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo,
and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

G.R. No. 169777 April 20, 2006

488 SCRA 1

FACTS:

This case is regarding the railway project of the North Luzon Railways Corporation with the China National Machinery
and Equipment Group as well as the Wiretapping activity of the ISAFP, and the Fertilizer scam.

The Senate Committees sent invitations to various officials of the Executive Department and AFP officials for them
to appear before Senate on Sept. 29, 2005. Before said date arrived, Executive Sec. Ermita sent a letter to Senate
President Drilon, requesting for a postponement of the hearing on Sept. 29 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 refused the request.

On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among others, mandated that “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.” Pursuant to this Order, Executive Sec. Ermita communicated to the
Senate that the executive and AFP officials would not be able to attend the meeting since the President has not yet
given her consent. Despite the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials invited,
attended the investigation. Both faced court marshal for such attendance.

Hence, these petitions.

ISSUES:

1. WON EO 464 contravenes the power of inquiry vested in Congress

2. WON EO 464 violates the right of the people to information on matters of public concern
3. WON respondents have committed grave abuse of discretion when they implemented EO 464 prior to its
publication in a newspaper of general circulation.

4
RULING:

The power of inquiry. The Congress power of inquiry is expressly recognized in Sec. 21, Art. VI. But as early as 1950
(the 1935 Constitution did not contain a similar provision) in Arnault v. Nazareno, the Court already recognized that
the power of inquiry is inherent in the power to legislate xxx

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... is co-extensive with the power to legislate. 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.

xxx the power of inquiry, “with process to enforce it,” is grounded on the necessity of the 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.

The power of inquiry is subject to judicial review xxx 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 Court’s certiorari powers under Sec. 1, Art. VIII. For one... 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... 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 investigations, 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. Sec. 21, Art. VI likewise establishes crucial
safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published rules of procedure. Sec. 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.

Exemption to power of inquiry. Even where the inquiry is in aid of legislation, there are still recognized exemptions
to the power of inquiry, which exemptions falls under the rubric of “executive privilege.”

Executive privilege, defined. Schwartz 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.”

Kinds of executive privilege. One variety of the privilege...is the state secrets privilege...on the ground that the
information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another
variety is the informer’s 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.

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.

5
The principle of executive privilege. 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.
Xxx 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.

Constitutionality of Sec. 1, EO 464. Section 1, in view of its specific reference to Sec. 22 of Art. VI 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 Sec. 22, Art. VI xxx 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 Sec. 22, Art. VI, 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 Sec. 2 and 3, EO 464. En passant, the Court notes that Section 2(b) of EO 464 virtually states that executive
privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege...is properly invoked in relation
to specific categories of information and not to categories of persons.

The claim of executive privilege must be accompanied by specific allegation of basis thereof. 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 xxx

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 xxx

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. A useful analogy in
determining the requisite degree of particularity would be the privilege against self-incrimination xxx The claim of
privilege under Sec. 3, EO 464 in relation to Sec. 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 EO 464, coupled with an
announcement that the President has not given her consent. It is woefully insufficient for Congress to determine

6
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 EO 464 must be invalidated. EO 464 unlawfully delegated authority to the heads
of offices in Sec. 2(b) to determine certain information as privileged. Section 2(b) in relation to Section 3 virtually
provides that, once the head of office determines that a certain information is privileged, such determination is
presumed to bear the President’s authority and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exception nature of the privilege. Executive privilege...is
recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique
role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary
to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised
on the fact that certain informations (sic) 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.

How executive privilege should be applied in the case of an official xxx 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.

Right 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
assistance 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 governmental
officials through various legal means allowed by their freedom of expression xxx

The impairment of the right of the people to information as a consequence of EO 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislature’s power of inquiry.

7
Implementation of EO 464 prior to its publication. While EO 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, Tanada 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 the 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.

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, EO 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.

8
 THE SENATE BLUE RIBBON COMMITTEE, represented by its Chairman, SENATOR AQUILINO Q. PIMENTEL,
JR., Petitioner,
vs.
HON. JOSE B. MAJADUCON, Presiding Judge of Branch 23, Regional Trial Court of General Santos City, and ATTY.
NILO J. FLAVIANO, Respondents.

G.R. No. 136760 July 29, 2003

407 SCRA 356

FACTS:

This case had its aegis when the Senate Blue Ribbon Committee conducted an inquiry into the alleged
mismanagement of the funds and investment of the Armed Forces Retirement and Separation Benefits System (AFP-
RSBS). During the public hearings by the Blue Ribbon Committee, it appeared that the AFP-RSBS purchased a lot
from Atty. Nilo J. Flaviano worth P10,500 per square meter. However, the deed of sale filed with the Register of
Deeds indicated that the purchase price of the lot was only P3,000 per square meter. The Committee caused the
service of a subpoena to Atty. Flaviano, directing him to appear and testify before it. Respondent refused to appear
and filed a petition for prohibition and preliminary injunction with prayer for temporary restraining order with the
RTC of General Santos City. The trial court issued a TRO directing the committee to cease and desist from proceeding
with the inquiry. The Committee filed a motion to dismiss on the ground of lack of jurisdiction and failure to state a
valid cause of action. The Trial Court denied the motion to dismiss. Hence, this petition for certiorari alleging that
Judge Majaducon committed grave abuse of discretion and acted without or in excess of jurisdiction.

ISSUES:

Whether or not respondent Judge Jose Majaducon committed grave abuse of discretion when he dismissed the
petition for prohibition and issued the writ of preliminary injunction.

RULING:

The assailed resolution of respondent Judge Majaducon was issued without legal basis. The principle of separation
of powers essentially means that legislation belongs to Congress, execution to the Executive, and settlement of legal
controversies to the Judiciary. Each is prevented from invading the domain of the others. When the Senate Blue
Ribbon Committee served subpoena on respondent Flaviano to appear and testify before it in connection with its
investigation of the alleged misuse and mismanagement of the AFP-RSBS funds, it did so pursuant to its authority to
conduct inquiries in aid of legislation. This is clearly provided in Article 6, Section 21 of the 1987 Constitution: The
Senate of 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

9
inquiries shall be respected. Hence, the RTC of General Santos City, or any court for that matter, had no authority to
prohibit the Committee from requiring respondent t appear and testify before it. Also, the ruling in Bengzon vs. Blue
Ribbon Committee cited by the respondent does not apply in this case. The factual circumstances therein are
different from those in the case at bar. In Bengzon, no intended legislation was involved and the subject matter of
the inquiry was more within the province of the courts rather than the legislature. On the other hand, there was in
this case a clear legislative purpose, and this is to look into the reported misuse and mismanagement of the AFP-
RSBS funds, with the intention of enacting appropriate legislation to protect the rights and interests of the officers
and members of the Armed Forces of the Philippines. Wherefore, the petition is GRANTED.

10
 B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES, ARMED FORCES OF THE
CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C. ROA AS THE PRE-TRIAL TINGA, INVESTIGATING
OFFICER, THE CHICO-NAZARIO, PROVOST MARSHALL GENERAL GARCIA, and OF THE ARMED FORCES OF THE
PHILIPPINES AND THE GENERAL COURT-MARTIAL, Respondents.

G.R. No. 170165 August 15, 2006

498 SCRA 671

FACTS:

The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud and the surfacing of
the “Hello Garci” tapes. PGMA issued EO 464 enjoining officials of the executive department including the military
establishment from appearing in any legislative inquiry without her consent. AFP Chief of Staff Gen. Senga issued a
Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from appearing before the Senate Committee without
Presidential approval. However, the two appeared before the Senate in spite the fact that a directive has been given
to them. As a result, the two were relieved of their assignments for allegedly violating the Articles of War and the
time honoured principle of the “Chain of Command.” Gen. Senga ordered them to be subjected before the General
Court Martial proceedings for willfuly violating an order of a superior officer.

ISSUE:

Whether or not the President has the authority to issue an order to the members of the AFP preventing them from
testifying before a legislative inquiry.

RULING:

Yes. The SC hold that 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, 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.

SC ruled in Senate v. Ermita 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

11
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 Executive’s power as commander-in-chief to control the actions and
speech of members of the armed forces. The President’s prerogatives as commander-in-chief are not hampered by
the same limitations as in executive privilege.

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 legislature’s functions is the conduct of
inquiries in aid of legislation. Inasmuch as it is ill-advised for Congress to interfere with the President’s power as
commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress’s 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.

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.

12
 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of CAMILO L. SABIO v.
HON. SENATOR RICHARD J. GORDON, et al.

G.R. No. 174340 17 October 2006,

504 SCRA 671

FACTS:

On February 20, 2006, Senator Miriam Defensor-Santiago introduced Senate Res. No. 455 “directing an inquiry in
aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation
(POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation
(PHC) due to the alleged improprieties in their operations by their respective Board of Directors.” Pursuant to this,
on May 8, 2006, Senator Richard Gordon, wrote Chairman Camilo Sabio of the PCGG inviting him to be one of the
resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public
Enterprises and Committee on Public Services. Chairman Sabio declined the invitation because of prior commitment.
At the same time, he invoked Section 4(b) of E.O. No. 1 “No member or staff of the Commission shall be required to
testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its
official cognizance.” Apparently, the purpose is to ensure PCGG’s unhampered performance of its task. Gordon’s
Subpoenae Ad Testificandum was repeatedly ignored by Sabio hence he threatened Sabio to be cited with contempt.

ISSUE:

Whether or not Section 4 of EO No. 1 is constitutional.

HELD:

No. It can be said that the Congress’ power of inquiry has gained more solid existence and expansive construal. The
Court’s high regard to such power is rendered more evident in Senate v. Ermita, where it categorically ruled
that “the power of inquiry is broad enough to cover officials of the executive branch.” Verily, the Court reinforced
the doctrine in Arnault that “the operation of government, being a legitimate subject for legislation, is a proper
subject for investigation” and that “the power of inquiry is co-extensive with the power to legislate”. Subject to
reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.

Article III, Section 7 The right of the people to information on matters of public concern shall be recognized. Access
to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of
the government, as well as provide the people sufficient information to enable them to exercise effectively their

13
constitutional rights. Armed with the right information, citizens can participate in public discussions leading to the
formulation of government policies and their effective implementation.

14
 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.

G.R. No. 180643 March 25, 2008

549 SCRA 77

FACTS:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong
Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband
Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be
financed by the People’s Republic of China. The Senate passed various resolutions relative to the NBN deal. In the
September 18, 2007 hearing Jose de Venecia III testified that several high executive officials and power brokers were
using their influence to push the approval of the NBN Project by the NEDA. Neri, the head of NEDA, was then invited
to testify before the Senate Blue Ribbon. He appeared in one hearing wherein he was interrogated for 11 hrs and
during which he admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his approval of
the NBN project. He further narrated that he informed President Arroyo about the bribery attempt and that she
instructed him not to accept the bribe.

However, when probed further on what they discussed about the NBN Project, petitioner refused to answer,
invoking “executive privilege”. In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.

He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the communications
between GMA and Neri are privileged and that the jurisprudence laid down in Senate vs Ermita be applied. He was
cited in contempt of respondent committees and an order for his arrest and detention until such time that he would
appear and give his testimony.

ISSUES:

Are the communications elicited by the subject three (3) questions covered by executive privilege?

RULING:

The communications are covered by executive privilege. The revocation of EO 464 (advised executive officials and
employees to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the

15
case of Senate v. Ermita when they are invited to legislative inquiries in aid of legislation.), does not in any way
diminish the concept of executive privilege. This is because this concept has Constitutional underpinnings. The claim
of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually
committed by the Constitution to the President, such as the area of military and foreign relations. Under our
Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and diplomatic
powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.

Several jurisprudence cited provide the elements of presidential communications privilege:

1) The protected communication must relate to a “quintessential and non-delegable presidential power.”
2) The communication must be authored or “solicited and received” by a close advisor of the President or
the President himself. The judicial test is that an advisor must be in “operational proximity” with the
President.
3) The presidential communications privilege remains a qualified privilege that may be overcome by a
showing of adequate need, such that the information sought “likely contains important evidence” and by
the unavailability of the information elsewhere by an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the
communications elicited by the three (3) questions “fall under conversation and correspondence between the
President and public officials” necessary in “her executive and policy decision-making process” and, that “the
information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on
matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions
are covered by the presidential communications privilege. First, the communications relate to a “quintessential and
non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries.
This authority of the President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close
advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being
a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority.

Respondent Committees further contend that the grant of petitioner’s claim of executive privilege violates the
constitutional provisions on the right of the people to information on matters of public concern.50 We might have
agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to
them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with the exception only of those covered
by his claim of executive privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: The right
of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by
law.

16
 VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY,
NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND
ELECTORAL REFORMS, respondents.

G.R. No. 170338 December 23, 2008

575 SCRA 170

FACTS:

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. The tapes, notoriously referred to as the
"Hello Garci" tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio Garcillano
to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject
of heated legislative hearings conducted separately by committees of both Houses of Congress.

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.

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

Respondents justify their non-observance of the constitutionally mandated publication by arguing that the rules
have never been amended since 1995 and, despite that, they are published in booklet form available to anyone for
free, and accessible to the public at the Senate’s internet web page.

ISSUES:

Whether or not publication of the Rules of Procedures Governing Inquiries in Aid of Legislation through the Senate’s
website, satisfies the due process requirement of law.

17
RULING:

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 Tañada v. Tuvera ruling which requires publication either in the Official Gazette or in a
newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7)
days after publication in two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Tañada is mandatory to comply with the due process requirement because the Rules
of Procedure put a person’s liberty at risk. A person who violates the Rules of Procedure could be arrested and
detained by the Senate.

The invocation by the respondents of the provisions of R.A. No. 8792, 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. In other words, the law merely recognizes the admissibility in evidence (for their being
the original) of electronic data messages and/or electronic documents. 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."

18
 SIXTO S. BRILLANTES, JR., petitioner,
JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M.
DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE A.
BERNAS, Petitioners-in-Intervention,
vs.
COMMISSION ON ELECTIONS, respondent.

G.R. No. 163193 June 15, 2004

432 SCRA 269

FACTS:

On December 22, 1997, Congress enacted Republic Act No. 8436 authorizing the COMELEC to use an automated
election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the
national and local elections. It also required the COMELEC to acquire automated counting machines (ACMs),
computer equipment, devices and materials and adopt new electoral forms and printing materials.
The COMELEC initially intended to implement the said automation during the May 11, 1998 presidential elections,
particularly in counting the votes collected from the Autonomous Region in Muslim Mindanao (ARMM). However,
the failure of the machines to correctly read a number of automated ballots discontinued its implementation.

Contributions for the establishment of the AES persisted that even President Gloria Macapagal-Arroyo issued
Executive Order No. 172 on January 24, 2003, allocating the sum of P2,500,000,000 to exclusively fund the AES in
time for the May 10, 2004 elections. On February 10, 2003, upon the request of the COMELEC, President Gloria
Macapagal-Arroyo issued Executive Order No. 175 authorizing the release of a further supplemental P500 million
budget for the AES project of the COMELEC.

The Supreme Court resolved the COMELEC to maintain the old and manual voting and counting system for the May
10, 2004 elections after contract negations with companies Mega Pacific Consortium (the supplier of the
computerized voting/counting machines) were discontinued. Despite this impediment, the COMELEC nevertheless
continued the electronic transmission of advanced unofficial results of the 2004 elections for national, provincial
and municipal positions, also dubbed as an "unofficial quick count."

Petitioner contends that the respondent COMELEC committed grave abuse of discretion amounting to excess of
Jurisdiction in the issuance of Resolution No. 6712. Respondent COMELEC contends that its advancement in
tabulation procedures is allowed within the statutory confines of section 52 (i) of the Omnibus Election Code that:
Prescribe(s) the use or adoption of the latest technological and electronic devices, taking into account the situation
prevailing in the area and the funds available for the purpose. Provided, That the Commission shall notify the
authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of
technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices.

ISSUE:

19
WON Resolution No. 6712 dated April 28, 2004 issued by the COMELEC in authorizing the use of election funds in
consolidating the election results for the May 10, 2004 elections should be declared VOID, as it is unconstitutional.

RULING:

YES. For violating section 4 of Article VII. The said Resolution No. 6712 preempts the sole authority of the Congress
to canvass the votes of the election returns for the President and the Vice-President. Art. VII, Sec. 4 of the 1987:
Resolution Preempts the sole and exclusive authority vested in the Congress to canvass the votes for the election of
President and Vice-President. It is a grave error on the part of the respondent to have ignored the misapprehensions
addressed by Senate President Franklin M. Drilon to COMELEC Chairman Benjamin Abalos during the 2004 saying
that such act would be in violation of the Constitution (section 4 of Article VII): "any quick count to be conducted by
the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President,
which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional
authority."

The existence of an accredited Citizen’s arm: Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No.
8173, and reiterated in Section 18 of Rep. Act No. 8436, the accredited citizen’s arm - in this case, NAMFREL - is
exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes,
whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is
authorized to use a copy of the election returns for purposes of conducting an "unofficial" count.

In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under
the said laws, are not intended for undertaking an "unofficial" count. The said copies are archived and unsealed only
when needed by to verify election results in connection with resolving election disputes that may be established.

Inapplicability of Section 52(i) of the Omnibus Election Code: The Court contends that Section 52(i) of the Omnibus
Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the
use of the latest technological and election devices for "unofficial" tabulations of votes. Moreover, the COMELEC
failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by
the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the
use of such devices, after failing to submit any document proving that it had notified all political parties of the
intended adoption of Resolution No. 6712.

20
 BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina
Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD,
KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC
INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN,
SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.

G.R. No. 138570 October 10, 2000

342 SCRA 449

FACTS:

The United States panel met with the Philippine panel to discussed, among others, the possible elements of the
Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on
January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by
Secretary Siazon and United States Ambassador Thomas Hubbard. Pres. Joseph Estrada ratified the VFA on October
5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.

Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21,
Article VII.

Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities”
may be allowed in the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by congress, and
c) recognized as such by the other contracting state.

Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such
treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.

ISSUE:

Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?

RULING:

21
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities
should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21,
Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes
required to obtain the valid concurrence of the senate.

The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article
XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

It is inconsequential whether the United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty.

22
 ROLEX SUPLICO, Petitioner,
vs.
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA SECRETARY ROMULO L. NERI, and
the NEDA-INVESTMENT COORDINATION COMMITTEE, DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, including the COMMISSION
ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE
TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY
(ICT), headed by DOTC ASSISTANT SECRETARY ELMER A. SONEJA as Chairman, and the TECHNICAL WORKING
GROUP FOR ICT, AND DOTC ASSISTANT SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF
THE DOTC FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE CORPORATION, AMSTERDAM
HOLDINGS, INC., AND ALL PERSONS ACTING IN THEIR BEHALF, Respondents.

G.R. No. 178830 July 14, 2008

558 SCRA 329

FACTS:

Triple petitions for certiorari, prohibition and mandamus, with application for the issuance of a TRO and/or
preliminary injunction were filed and consolidated in the SC. The prayers of the said petitions, among others, sought
the annulment of the award of the contract for the national broadband network to respondent ZTE Corporation and
to enjoin any activity in connection with the said deal.

On October 2, 2007, during a meeting, Pres. GMA, acting in her official capacity informed Pres. Hu Jintao of China
that the Philippine Government had decided not to continue with the ZTE-NBN project. Later, the Solicitor General
made a manifestation and motion stating that in an Indorsement by the Legal Division of the DOTC, it has been
informed that the Philippine Government has decided not to continue with the ZTE-NBN Project. That said, there is
no more justiciable controversy for the Court to resolve. The public respondents then prayed that the present
petitions be dismissed.

The petitioners, in their respective replies, argued that the Indorsement is self-serving and not a sufficient basis that
the deal has been permanently scrapped. Assuming arguendo that the petition has become moot, the Court may
still take cognizance thereof to educate the bench and the bar. Further, because of the transcendental importance
of the issues raised, the Court should take cognizance of this case despite its apparent mootness.

The petitioners ultimately contended the declarations made by officials belonging to the executive branch on the
Philippine Government’s decision not to continue with the ZTE-NBN Project are self-serving, hence, inadmissible.

ISSUE:

WON the Court may take judicial notice of the acts of President GMA?

23
RULING:

The SC dismissed the petition. It held that It has no alternative but to take judicial notice of the official act of the
President.

Under the Section 1 Rule 129, it is mandatory and the Court has no alternative but to take judicial notice of the
official acts of the President of the Philippines, who heads the executive branch of our government. It is further
provided in the said rule that the court shall take judicial notice of the foregoing facts without introduction of
evidence. Since we consider the act of cancellation by President Macapagal-Arroyo of the proposed ZTE-NBN Project
during the meeting of October 2, 2007 with the Chinese President in China as an official act of the executive
department, the Court must take judicial notice of such official act without need of evidence.

Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty of the executive officials
of informing this Court of the government’s decision not to continue with the ZTE-NBN Project is also presumed to
have been regularly performed, absent proof to the contrary. The Court finds no factual or legal basis to disregard
this disputable presumption in the present instance.

24
 SUZETTE NICOLAS y SOMBILON, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as Secretary
of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary; RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government; SERGIO APOSTOL, in his capacity as Presidential Legal Counsel;
and L/CPL. DANIEL SMITH, Respondents.

G.R. No. 175888 February 11, 2009

578 SCRA 438

FACTS:

On the 1st of November 2005, Daniel Smith committed the crime of rape against Nicole. He was convicted of the said
crime and was ordered by the court to suffer imprisonment. Smith was a US serviceman convicted of a crime against
our penal laws and the crime was committed within the country’s jurisdiction. But pursuant to the VFA, a treaty
between the US and Philippines, the US embassy was granted custody over Smith. Nicole, together with the other
petitioners appealed before the SC assailing the validity of the VFA. Their contention is that the VFA was not ratified
by the US senate in the same way our senate ratified the VFA.

ISSUE:

Is the VFA void and unconstitutional & whether or not it is self-executing.

RULING:

The VFA is a self-executing Agreement because the parties intend its provisions to be enforceable, precisely because
the VFA is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter
of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce
Smith before the court during the trial.

The VFA is covered by implementing legislation inasmuch as it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days from their ratification be immediately implemented.
The SC noted that the VFA is not like other treaties that need implementing legislation such as the Vienna
Convention. As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been
given under it and this can only be done through implementing legislation. The VFA itself is another form of
implementation of its provisions.

25
 PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE, Respondents.

G.R. No. 171396 May 3, 2006

489 SCRA 160

FACTS:

In February 2006, due to the escape of some Magdalo members and the discovery of a plan (Oplan Hackle I) to
assassinate the president, then president Gloria Macapagal-Arroyo (GMA) issued Presidential Proclamation 1017
(PP1017) and is to be implemented by General Order No. 5 (GO 5). The said law was aimed to suppress lawlessness
and the connivance of extremists to bring down the government.

Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time revoked all permits issued
for rallies and other public organization/meeting. Notwithstanding the cancellation of their rally permit, Kilusang
Mayo Uno (KMU) head Randolf David proceeded to rally which led to his arrest.

Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by the CIDG and they seized and
confiscated anti-GMA articles and write ups. Later still, another known anti-GMA news agency (Malaya) was raided
and seized. On the same day, Beltran of Anakpawis, was also arrested. His arrest was however grounded on a warrant
of arrest issued way back in 1985 for his actions against Marcos. His supporters cannot visit him in jail because of
the current imposition of PP 1017 and GO 5.

In March, GMA issued PP 1021 which declared that the state of national emergency ceased to exist. David and some
opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot be validly
declared by the president for such power is reposed in Congress. Also such declaration is actually a declaration of
martial law. Olivares-Cacho also averred that the emergency contemplated in the Constitution are those of natural
calamities and that such is an overbreadth. Petitioners claim that PP 1017 is an overbreadth because it encroaches
upon protected and unprotected rights. The Sol-Gen argued that the issue has become moot and academic by reason
of the lifting of PP 1017 by virtue of the declaration of PP 1021. The Sol-Gen averred that PP 1017 is within the
president’s calling out power, take care power and take over power.

ISSUE:

Whether or not PP 1017 and GO 5 is constitutional.

26
RULING:

PP 1017 and its implementing GO are partly constitutional and partly unconstitutional.

The issue cannot be considered as moot and academic by reason of the lifting of the questioned PP. It is still in fact
operative because there are parties still affected due to the alleged violation of the said PP. Hence, the SC can take
cognition of the case at bar. The SC ruled that PP 1017 is constitutional in part and at the same time some provisions
of which are unconstitutional. The SC ruled in the following way;

Resolution by the SC on the Factual Basis of its declaration

The petitioners were not able to prove that GMA has no factual basis in issuing PP 1017 and GO 5. A reading of the
Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to
the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and
the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court
is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness
of the incidents, GMA was not expected to simply fold her arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
liberty.

Resolution by the SC on the Overbreadth Theory

First and foremost, the overbreadth doctrine is an analytical tool developed for testing ‘on their faces’ statutes in
free speech cases. The 7 consolidated cases at bar are not primarily ‘freedom of speech’ cases. Also, a plain reading
of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon
the AFP to prevent or suppress all forms of lawless violence. Moreover, the overbreadth doctrine is not intended for
testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.’ Undoubtedly, lawless violence, insurrection and rebellion are considered
‘harmful’ and ‘constitutionally unprotected conduct.’ Thus, claims of facial overbreadth are entertained in cases
involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again, that ‘overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to
protected conduct.’ Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.

Resolution by the SC on the Calling Out Power Doctrine

On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC considered the President’s ‘calling-
out’ power as a discretionary power solely vested in his wisdom, it stressed that ‘this does not prevent an
examination of whether such power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. The SC ruled that GMA has validly declared PP 1017
for the Constitution grants the President, as Commander-in-Chief, a ‘sequence’ of graduated powers. From the most
to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus,
and the power to declare Martial Law. The only criterion for the exercise of the calling-out power is that ‘whenever
it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or
rebellion.’ And such criterion has been met.

Resolution by the SC on the Take Care Doctrine

27
Pursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution (He shall ensure that the laws be faithfully executed.)
the president declared PP 1017. David et al averred that PP 1017 however violated Sec 1, Art 6 of the Constitution
for it arrogated legislative power to the President. Such power is vested in Congress. They assail the clause ‘to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon
my direction.’ The SC noted that such provision is similar to the power that granted former President Marcos
legislative powers (as provided in PP 1081). The SC ruled that the assailed PP 1017 is unconstitutional insofar as it
grants GMA the authority to promulgate ‘decrees.’ Legislative power is peculiarly within the province of the
Legislature. Sec 1, Article 6 categorically states that ‘[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives.’ To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify GMA’[s exercise of legislative power by issuing decrees. The
president can only “take care” of the carrying out of laws but cannot create or enact laws.

Resolution by the SC on the Take Over Power Doctrine

The president cannot validly order the taking over of private corporations or institutions such as the Daily Tribune
without any authority from Congress. On the other hand, the word emergency contemplated in the constitution is
not limited to natural calamities but rather it also includes rebellion. The SC made a distinction; the president can
declare the state of national emergency but her exercise of emergency powers does not come automatically after it
for such exercise needs authority from Congress. The authority from Congress must be based on the following:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration

The SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a valid exercise of the
calling out power of the president by the president.

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